EXHIBIT 4
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XXXX XX XXXXXXX COMMERCIAL MORTGAGE INC.,
Depositor,
BANK OF AMERICA, NATIONAL ASSOCIATION,
Master Servicer,
LNR PARTNERS, INC.,
Special Servicer,
and
XXXXX FARGO BANK, N.A.,
Trustee and REMIC Administrator
---------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of August 1, 2006
---------------------------------
$1,964,746,808
Commercial Mortgage Pass-Through Certificates
Series 2006-3
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS; CERTAIN CALCULATIONS IN RESPECT OF THE MORTGAGE POOL AND THE
CERTIFICATES
Section 1.01 Defined Terms................................................
Section 1.02 Rules of Construction; Other Definitional Provisions.........
Section 1.03 Certain Calculations in Respect of the Mortgage Pool.........
Section 1.04 Cross-Collateralized Mortgage Loans..........................
Section 1.05 Incorporation of Preliminary Statement.......................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES; ORIGINAL
ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans.................................
Section 2.02 Acceptance of REMIC I by Trustee.............................
Section 2.03 Mortgage Loan Seller's Repurchase or Substitution of
Mortgage Loans for Material Document Defects and
Material Breaches...........................................
Section 2.04 Representations and Warranties of the Depositor..............
Section 2.05 Representations and Warranties of the Master Servicer........
Section 2.06 Representations and Warranties of the Special Servicer.......
Section 2.07 Representations and Warranties of the Trustee and the
REMIC Administrator.........................................
Section 2.08 [RESERVED]...................................................
Section 2.09 Issuance of the Class R-I Certificates; Creation of the
REMIC I Regular Interests...................................
Section 2.10 Conveyance of REMIC I Regular Interests; Acceptance of
REMIC II by the Trustee.....................................
Section 2.11 Issuance of the REMIC II Certificates........................
Section 2.12 Loss of Value Reserve Fund Provisions........................
Section 2.13 Designation of Grantor Trust.................................
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
Section 3.01 Administration of the Serviced Loans.........................
Section 3.02 Collection of Mortgage Loan Payments.........................
Section 3.03 Collection of Taxes, Assessments and Similar Items;
Servicing Account; Servicing Advances; Reserve Accounts.....
Section 3.04 Certificate Account, Distribution Account, REMIC I
Distribution Account, REMIC II Distribution Account,
Excess Interest Distribution Account, Excess Liquidation
Proceeds Account, the Interest Reserve Account and
Serviced Whole Loan Custodial Account.......................
Section 3.05 Permitted Withdrawals From the Certificate Account, the
Distribution Account, the Serviced Whole Loan Custodial
Accounts and the Excess Liquidation Proceeds Account........
Section 3.06 Investment of Funds in the Certificate Account, the
Interest Reserve Account, the Excess Interest
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 Serviced Loans....................
Section 3.10 Trustee to Cooperate; Release of Mortgage Files..............
Section 3.11 Servicing Compensation; Interest on Servicing Advances;
Payment of Certain Expenses; Obligations of the Trustee
Regarding Back-up Servicing Advances........................
Section 3.12 Inspections; Collection of Financial Statements..............
Section 3.13 [RESERVED]...................................................
Section 3.14 [RESERVED]...................................................
Section 3.15 Access to Certain Information................................
Section 3.16 Title to REO Property; REO Account...........................
Section 3.17 Management of REO Property...................................
Section 3.18 Resolution of Defaulted Serviced Loans and REO Properties....
Section 3.19 Additional Obligations of the Master Servicer and the
Special Servicer............................................
Section 3.20 Modifications, Waivers, Amendments and Consents..............
Section 3.21 Transfer of Servicing Between Master Servicer and Special
Servicer; Record Keeping; Asset Status Report...............
Section 3.22 Sub-Servicing Agreements.....................................
Section 3.23 Designation of the Special Servicer by the Majority
Certificateholder of the Controlling Class or the One
Stamford Forum Controlling Holder...........................
Section 3.24 Confidentiality..............................................
Section 3.25 No Solicitation of Prepayments...............................
Section 3.26 Certain Matters with Respect to Mortgage Loans Permitting
Defeasance, Franchise Mortgage Loans and Certain
Mortgage Loans Permitting Additional Debt...................
Section 3.27 Application of Default Charges...............................
Section 3.28 Matters Regarding the Whole Loans............................
Section 3.29 Certain Powers of the One Stamford Forum Controlling
Holder and Certain Intercreditor Matters....................
Section 3.30 Litigation Control...........................................
Section 3.31 Matters Relating to Certain Mortgage Loans...................
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS AND RELATED MATTERS
Section 4.01 Distributions................................................
Section 4.02 Statements to Certificateholders; Certain Reports by the
Master Servicer and the Special Servicer....................
Section 4.03 P&I Advances.................................................
Section 4.04 Allocation of Realized Losses and Additional Trust Fund
Expenses....................................................
Section 4.05 Interest Reserve Account.....................................
Section 4.06 Excess Interest Distribution Account.........................
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates.............................................
Section 5.02 Registration of Transfer and Exchange of Certificates........
Section 5.03 Book-Entry Certificates......................................
Section 5.04 Mutilated, Destroyed, Lost or Stolen Certificates............
Section 5.05 Persons Deemed Owners........................................
Section 5.06 Certification by Certificate Owners..........................
Section 5.07 Regarding the Identification of Certain
Certificateholders..........................................
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER, THE SPECIAL SERVICER AND THE REMIC
ADMINISTRATOR
Section 6.01 Liability of the Depositor, the Master Servicer, the
Special Servicer and the REMIC Administrator................
Section 6.02 Merger, Consolidation or Conversion of the Depositor, the
Master Servicer, the Special Servicer or the REMIC
Administrator...............................................
Section 6.03 Limitation on Liability of the Depositor, the Master
Servicer, the Special Servicer, the REMIC Administrator
and Others..................................................
Section 6.04 Master Servicer, Special Servicer and REMIC Administrator
Not to Resign...............................................
Section 6.05 Rights of the Depositor and the Trustee in Respect of the
Master Servicer, the Special Servicer and the REMIC
Administrator...............................................
ARTICLE VII
DEFAULT
Section 7.01 Events of Default............................................
Section 7.02 Trustee to Act; Appointment of Successor.....................
Section 7.03 Form 8-K Information; 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 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................................................
Section 10.05 Grantor Trust Administration.................................
ARTICLE XI
EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE
Section 11.01 Intent of the Parties; Reasonableness........................
Section 11.02 Succession; Subcontractors...................................
Section 11.03 Filing Obligations...........................................
Section 11.04 Form 10-D Filings............................................
Section 11.05 Form 10-K Filings............................................
Section 11.06 Xxxxxxxx-Xxxxx Certification.................................
Section 11.07 Form 8-K Filings.............................................
Section 11.08 Form 15 Filing...............................................
Section 11.09 Annual Compliance Statements.................................
Section 11.10 Annual Reports on Assessment of Compliance with Servicing
Criteria....................................................
Section 11.11 Annual Independent Public Accountants' Servicing Report......
Section 11.12 Indemnification..............................................
Section 11.13 Signatures; Article XI Notices...............................
Section 11.14 Amendments...................................................
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 Amendment....................................................
Section 12.02 Recordation of Agreement; Counterparts.......................
Section 12.03 Limitation on Rights of Certificateholders...................
Section 12.04 Governing Law................................................
Section 12.05 Notices......................................................
Section 12.06 Severability of Provisions...................................
Section 12.07 Successors and Assigns; Beneficiaries........................
Section 12.08 Article and Section Headings.................................
Section 12.09 Notices to and from Rating Agencies..........................
Section 12.10 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-1A Certificate
EXHIBIT A-6 Form of Class XW Certificate
EXHIBIT A-7 Form of Class A-M Certificate
EXHIBIT A-8 Form of Class A-J Certificate
EXHIBIT A-9 Form of Class B Certificate
EXHIBIT A-10 Form of Class C Certificate
EXHIBIT A-11 Form of Class D Certificate
EXHIBIT A-12 Form of Class E Certificate
EXHIBIT A-13 Form of Class F Certificate
EXHIBIT A-14 Form of Class G Certificate
EXHIBIT A-15 Form of Class H Certificate
EXHIBIT A-16 Form of Class J Certificate
EXHIBIT A-17 Form of Class K Certificate
EXHIBIT A-18 Form of Class L Certificate
EXHIBIT A-19 Form of Class M Certificate
EXHIBIT A-20 Form of Class N Certificate
EXHIBIT A-21 Form of Class O Certificate
EXHIBIT A-22 Form of Class P Certificate
EXHIBIT A-23 Form of Class R-I Certificate
EXHIBIT A-24 Form of Class R-II Certificate
EXHIBIT A-25 Form of Class V Certificate
EXHIBIT B Form of Investment Representation Letter
EXHIBIT C-1 Form of Transfer Affidavit and Agreement Pursuant to
Section 5.02(d)(i)(B)
EXHIBIT C-2 Form of Transferor Certificate Pursuant to Section
5.02(d)(i)(D)
EXHIBIT D Request for Release
EXHIBIT E Form of ERISA Representation Letter
EXHIBIT F Form of Custodial Certification
EXHIBIT G Form of Trustee Distribution Date Statement
EXHIBIT H Request for Review
EXHIBIT I Form of Notice Regarding Purchase Option Exercise
EXHIBIT J Form of Notice and Certification Regarding Defeasance of
Mortgage Loan
EXHIBIT K Form of Certification to be Provided with Form 10-K
EXHIBIT L Form of Certification to be Provided to Depositor
EXHIBIT M Form of Confidentiality Agreement
EXHIBIT N Form of Regulation S Certificate
EXHIBIT O Form of Transfer Certificate for Exchange or Transfer from
Domestic Global Certificate to Regulation S Global Certificate
During the Restricted Period
EXHIBIT P Form of Transfer Certificate for Exchange or Transfer from
Domestic Global Certificate to Regulation S Global Certificate
After the Restricted Period
EXHIBIT Q Form of Transfer Certificate for Exchange or Transfer from
Regulation S Global Certificate to Domestic Global Certificate
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 One Stamford Forum Controlling Holder
SCHEDULE VIII Servicing Criteria to be Addressed in Assessment of Compliance
SCHEDULE IX Additional Form 10-D Disclosure
SCHEDULE X Additional Form 10-K Disclosure
SCHEDULE XI Form 8-K Disclosure Information
SCHEDULE XII Form of Additional Disclosure Notification
SCHEDULE XIII One Stamford Forum Note B Amortization Schedule
This Pooling and Servicing Agreement (this "Agreement"), dated and
effective as of August 1, 2006, is by and among BANC OF AMERICA COMMERCIAL
MORTGAGE INC., as Depositor, BANK OF AMERICA, NATIONAL ASSOCIATION, as Master
Servicer, LNR PARTNERS, INC., as Special Servicer and XXXXX 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 two segregated pools
of assets within the Trust Fund (exclusive of the Excess Interest and the Excess
Interest Distribution Account,) be treated for federal income tax purposes as
two separate real estate mortgage investment conduits ("REMIC I" and "REMIC II",
respectively).
REMIC I
As provided herein, the Trustee will elect that the portion of the
Trust Fund consisting of the Mortgage Loans (exclusive of Excess Interest) and
certain other related assets subject to this Agreement shall be treated as a
REMIC for federal income tax purposes, and such segregated asset pool will be
designated as "REMIC I". The REMIC I Regular Interests listed below under the
heading "Corresponding REMIC I Regular Interests" constitute "regular interests"
in REMIC I and the Class R-I Certificates constitute the sole Class of "residual
interests" in REMIC I created hereunder for purposes of the REMIC Provisions.
The following table sets forth the Class or Component designation,
the corresponding REMIC I Regular Interest (the "Corresponding REMIC I Regular
Interest"), and the Corresponding Components of the Class 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 X-0 XX-0 $ 42,000,000 XA-1
Class X-0 XX-0 $ 43,500,000 XA-2
Class X-0 XX-0 $ 60,000,000 XA-3
Class X-0 XX-0 $ 1,010,683,000 XA-4
Class A-1A LA-1A $ 219,139,000 XA-1A
Class A-M LA-M $ 196,475,000 XA-M
Class A-J LA-J $ 152,268,000 XA-J
Class B LB $ 41,751,000 XB
Class C LC $ 19,647,000 XC
Class D LD $ 31,927,000 XD
Class E LE $ 17,192,000 XE
Class F LF $ 22,103,000 XF
Class G LG $ 17,192,000 XG
Class H LH $ 22,103,000 XH
Class J LJ $ 12,280,000 XJ
Class K LK $ 7,368,000 XK
Class L LL $ 7,367,000 XL
Class M LM $ 2,456,000 XM
Class N LN $ 7,368,000 XN
Class O LO $ 4,912,000 XO
Class P LP $ 27,015,808 XP
(1) The REMIC I Regular Interest or Interests and the Component or Components
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-1A, Class XW, Class A-M, Class A-J,
Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K,
Class L, Class M, Class N, Class O and Class P Certificates will constitute
"regular interests" in REMIC II, and the Class R-II Certificates will constitute
the sole Class of "residual interests" in REMIC II for purposes of the REMIC
Provisions.
The following table sets forth the designation, the approximate
initial Pass-Through Rate and the Initial Class Principal Balance for each of
the Classes of REMIC II Regular Certificates (which are issued by REMIC II):
Approximate Initial Initial Class
Designation Pass-Through Rate Principal Balance
--------------------------------------------------------------------------------
REMIC II Regular Certificates
Class A-1 5.6850% per annum $ 42,000,000
Class A-2 5.8060% per annum $ 43,500,000
Class A-3 5.8870% per annum (1) $ 60,000,000
Class A-4 5.8890% per annum (1) $ 1,010,683,000
Class A-1A 5.8900% per annum (1) $ 219,139,000
Class A-M 6.0102% per annum (2) $ 196,475,000
Class A-J 6.0292% per annum (2) $ 152,268,000
Class B 6.0792% per annum (2) $ 41,751,000
Class C 6.1082% per annum (2) $ 19,647,000
Class D 6.1182% per annum (3) $ 31,927,000
Class E 6.1182% per annum (3) $ 17,192,000
Class F 6.1182% per annum (3) $ 22,103,000
Class G 6.1182% per annum (3) $ 17,192,000
Class H 6.1182% per annum (3) $ 22,103,000
Class J 5.5410% per annum (4) $ 12,280,000
Class K 5.5410% per annum (4) $ 7,368,000
Class L 5.5410% per annum (4) $ 7,367,000
Class M 5.5410% per annum (4) $ 2,456,000
Class N 5.5410% per annum (4) $ 7,368,000
Class O 5.5410% per annum (4) $ 4,912,000
Class P 5.5410% per annum (4) $ 27,015,808
Class XW 0.2054% per annum (5) $ 1,964,746,808 (6)
------------
(1) The initial Pass-Through Rates for the Class A-3, Class A-4 and Class A-1A
Certificates are per annum rates equal to 5.8870%, 5.8890% and 5.8900%,
respectively. For any subsequent date, the Pass-Through Rates for the
Class A-3, Class A-4 and Class A-1A Certificates will accrue interest at a
fixed rate subject to a cap at the Weighted Average Net Mortgage Rate.
(2) The initial Pass-Through Rates for the Class A-M, Class A-J, Class B and
Class C Certificates are per annum rates equal to 6.0102%, 6.0292%,
6.0792% and 6.1082%, respectively. For any subsequent date, the
Pass-Through Rates for the Class A-M, Class A-J, Class B and Class C
Certificates will accrue interest at the Weighted Average Net Mortgage
Rate minus 0.1080%, 0.0890%, 0.0390% and 0.0100%, respectively.
(3) The initial Pass-Through Rate for each of the Class D, Class E, Class F,
Class G and Class H Certificates is a per annum rate equal to 6.1182%. For
any subsequent date, the Pass-Through Rates for the Class D, Class E,
Class F, Class G and Class H Certificates will accrue interest at the
Weighted Average Net Mortgage Rate.
(4) The initial Pass-Through Rate for each of the Class J, Class K, Class L,
Class M, Class N, Class O and Class P Certificates is a per annum rate
equal to 5.5410%. For any subsequent date, the Pass-Through Rates for the
Class J, Class K, Class L, Class M, Class N, Class O and Class P
Certificates will accrue interest at a fixed rate subject to a cap at the
Weighted Average Net Mortgage Rate.
(5) The Pass-Through Rates for the Class XW Certificates will be calculated in
accordance with the definitions of "Class XW Pass-Through Rate".
(6) The Class XW Certificates will not have Class Principal Balances; rather,
such Class of Certificates will accrue interest as provided herein on the
related notional amount.
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 REMIC I
Distribution Account after the distribution of all amounts distributable in
respect of the REMIC I Regular Interests and (ii) 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-I and Class R-II
Certificates, respectively.
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 "Excess Interest Grantor Trust") for federal income tax purposes. The Class
V Certificates represent undivided beneficial interests in the Excess Interest
Grantor Trust.
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator agree as follows:
ARTICLE I
DEFINITIONS; CERTAIN CALCULATIONS IN RESPECT OF THE MORTGAGE POOL AND THE
CERTIFICATES
Section 1.01 Defined Terms.
--------------
Whenever used in this Agreement, including in the Preliminary
Statement, the following words and phrases, unless the context otherwise
requires, shall have the meanings specified in this Article.
"30/360 Basis": The accrual of interest calculated on the basis of a
360-day year consisting of twelve 30-day months.
"Accrued Certificate Interest": With respect to any Class of REMIC
II Regular Certificates, for any Distribution Date, one month's interest 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 REMIC II
Regular Certificates for any Distribution Date shall be deemed to have accrued
during the applicable Interest Accrual Period. Accrued Certificate Interest
shall be calculated on the basis of a 360-day year consisting of twelve 30-day
months.
"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 definitions of Class XW Strip Rate with respect
to any applicable Component and any Distribution Date, and shall be deemed to
accrue during the calendar month preceding the month in which such Distribution
Date occurs.
"Actual/360 Basis": The accrual of interest calculated on the basis
of the actual number of days elapsed during any calendar month (or other
applicable recurring accrual period) in a year assumed to consist of 360 days.
"Additional Collateral": Any non-real property collateral pledged
and/or delivered by or on behalf of the related Mortgagor and held by the
related Mortgagee to secure payment on any Loan.
"Additional Disclosure Notification": The form of notification to be
included with any Additional Form 10-D Disclosure, Additional Form 10-K
Disclosure or Additional Form 8-K Disclosure, which is attached hereto as
Schedule XII.
"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 Form 8-K Disclosure": As defined in Section 11.07.
"Additional Form 10-D Disclosure": As defined in Section 11.04.
"Additional Form 10-K Disclosure": As defined in Section 11.05.
"Additional Master Servicing Compensation": As defined in Section
3.11(b).
"Additional Servicer": Each Affiliate of the Master Servicer that
services any of the Mortgage Loans and each Person who is not an Affiliate of
the Master Servicer, other than the Special Servicer and the Trustee, who
Services 10% or more of the Mortgage Loans.
"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 Loan or related
REO Serviced Loan, for any Distribution Date, the annualized rate at which
interest would have to accrue thereon on a 30/360 Basis during the most recently
ended calendar month to produce the actual amount of interest accrued (or, if
such Loan or REO Serviced Loan, as the case may be, is prepaid, in whole or in
part, or otherwise liquidated during such calendar month, that otherwise would
have accrued) in respect of such Loan or REO Serviced Loan, as the case may be,
at the related Net Mortgage Rate in effect for such Loan or REO Serviced Loan
during such calendar month. Such rate shall be calculated by multiplying (i) the
Net Mortgage Rate (and, in the case of an ARD Loan after its Anticipated
Repayment Date, without giving effect to any Excess Interest or the Excess
Interest Rate) by (ii) the actual number of days of accrued interest for the
related period for such Loan or REO Serviced Loan, divided by 30; provided,
however, that with respect to such Loan or REO Serviced Loan, 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 (unless, in either case, the related Distribution Date is the final
Distribution Date) will be the per annum rate stated in the related Mortgage
Note as of the Closing Date less the related Administrative Fee Rate and (b)
prior to the Due Date in March (or February, if the related Distribution Date is
the final Distribution Date) will be determined inclusive of one day of interest
retained for each of the one-month periods prior to the Due Dates in January and
February in any year that is not a leap year or February in any year that is a
leap year.
"Administrative Fee Rate": With respect to each Mortgage Loan and
REO Serviced Loan, as specified in the Mortgage Loan Schedule, being the sum of
the related Master Servicing Fee Rate and the Trustee Fee Rate.
"Advance": Any P&I Advance or Servicing Advance.
"Advance Interest": Interest accrued on any Advance at the
Reimbursement Rate and payable to the Master Servicer (or any Sub-Servicer), the
Special Servicer or the Trustee, as the case may be, all in accordance with
Section 3.11(g) or Section 4.03(d), as applicable.
"Adverse Grantor Trust Event": Either: (i) any impairment of the
status of the Grantor Trust as a "grantor trust" under subpart E, Part I of
subchapter J of the Code; or (ii) the imposition of a tax upon the Grantor Trust
or any of its assets or transactions.
"Adverse Rating Event": With respect to any Class of Rated
Certificates and each Rating Agency that has assigned a rating thereto, as of
any date of determination, the qualification, downgrade or withdrawal of the
rating then assigned to such Class of Rated Certificates by such Rating Agency
(or the placing of such Class of Rated Certificates on "negative credit watch"
status in contemplation of any such action with respect thereto).
"Adverse REMIC Event": With respect to each of REMIC I and REMIC II,
either (i) the endangerment of the status of such REMIC as a REMIC or (ii),
except as permitted by Section 3.17(a), the imposition of a tax upon such REMIC
or any of its assets or transactions (including, without limitation, the tax on
prohibited transactions as defined in Section 860F(a)(2) of the Code and the tax
on certain contributions set forth in Section 860G(d) of the Code).
"Affiliate": With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise and the terms "controlling" and
"controlled" have the meanings correlative to the foregoing.
"Agreement": This Pooling and Servicing Agreement, together with all
amendments hereof and supplements hereto.
"Anticipated Repayment Date": With respect to any ARD Loan, the date
specified on the related Mortgage Note, as of which Excess Interest shall begin
to accrue on such Loan, which date is prior to the Stated Maturity Date for such
Loan.
"Applicable State Law": For purposes of Article X, the Applicable
State Law shall be (a) the laws of any state in which the Corporate Trust Office
of the Trustee is located, (b) the laws of the states in which any loan
documents are held and/or any REO Properties are located, (c) such other state
and local law whose applicability shall have been brought to the attention of
the REMIC Administrator by either (i) an Opinion of Counsel delivered to it or
(ii) written notice from the appropriate taxing authority as to the
applicability of such state law, and (d) such other state or local law as to
which the REMIC Administrator has actual knowledge of applicability.
"Appraisal": With respect to any Mortgaged Property or REO Property
as to which an appraisal is required to be performed pursuant to the terms of
this Agreement, a narrative appraisal complying with Title XI of FIRREA (or, in
the case of a Loan or REO Serviced Loan with a Stated Principal Balance as of
the date of such appraisal of $2,000,000 or less, at the Special Servicer's
option, either a limited appraisal and a summary report or an internal valuation
prepared by the Special Servicer) that indicates the "market value" of the
subject property, as defined in 12 C.F.R. ss.225.62(g), and is conducted by a
Qualified Appraiser (or by the Special Servicer in the case of a limited
appraisal and summary report or internal valuation with respect to a Loan or an
REO Serviced Loan with a Stated Principal Balance as of the date of such
appraisal or valuation of $2,000,000 or less).
"Appraisal Reduction Amount": With respect to any Required Appraisal
Serviced Loan, an amount (calculated as of the Determination Date by the Special
Servicer immediately following the later of the date on which the most recent
relevant Appraisal acceptable for purposes of Section 3.19(b) was obtained by
the Special Servicer pursuant to this Agreement and the date of the most recent
Appraisal Trigger Event with respect to such Required Appraisal Serviced Loan)
equal to the excess, if any, of:
(1) the sum of (a) the Stated Principal Balance of such Required
Appraisal Serviced Loan as of such Determination Date, (b) to the extent not
previously advanced by or on behalf of the Master Servicer, or the Trustee, all
unpaid interest (net of Default Interest) accrued on such Required Appraisal
Serviced Loan through the most recent Due Date prior to such Determination Date,
(c) all unpaid Master Servicing Fees, Special Servicing Fees, Trustee Fees and
Additional Trust Fund Expenses accrued with respect to such Required Appraisal
Serviced Loan, (d) all related unreimbursed Advances made by or on behalf of the
Master Servicer, the Special Servicer or the Trustee with respect to such
Required Appraisal Serviced Loan and reimbursable out of the Trust Fund and all
Advances related to such Required Appraisal Serviced Loan that were not
reimbursed out of collections on such Required Appraisal Serviced Loan, together
with all unpaid Advance Interest accrued on such Advances, and (e) all currently
due but unpaid real estate taxes and assessments, insurance premiums and, if
applicable, ground rents in respect of the related Mortgaged Property or REO
Property, as applicable, for which neither the Master Servicer nor the Special
Servicer holds any Escrow Payments or Reserve Funds; over
(2) the sum of (x) the excess, if any, of (i) 90% of the Appraised
Value of the related Mortgaged Property or REO Property (subject to such
downward adjustments as the Special Servicer may deem appropriate in accordance
with the Servicing Standard (without implying any obligation to do so) based
upon its review of the related Appraisal and such other information as the
Special Servicer deems appropriate), as applicable, as determined by the most
recent relevant Appraisal acceptable for purposes of Section 3.19(b), over (ii)
the amount of any obligation(s) secured by any liens on such Mortgaged Property
or REO Property, as applicable, that are prior to the lien of such Required
Appraisal Serviced Loan, and (y) any Escrow Payments, Reserve Funds and/or
Letters of Credit held by the Master Servicer or the Special Servicer with
respect to such Required Appraisal Serviced Loan, the related Mortgaged Property
or any related REO Property (exclusive of any such items that are to be applied
to real estate taxes, assessments, insurance premiums and/or ground rents or
that were taken into account in determining the Appraised Value of the related
Mortgaged Property or REO Property, as applicable, referred to in clause
(2)(x)(i) of this definition).
Notwithstanding the foregoing, if (i) an Appraisal Trigger Event
occurs with respect to any Serviced Loan, (ii) either (A) no Appraisal has been
obtained or conducted, as applicable in accordance with Section 3.19(b), with
respect to the related Mortgaged Property during the 12 month period prior to
the date of such Appraisal Trigger Event or (B) there shall have occurred since
the date of the most recent Appraisal a material change in the circumstances
surrounding the related Mortgaged Property that would, in the Special Servicer's
judgment, materially affect the value of the property, and (iii) no new
Appraisal is obtained or conducted, as applicable in accordance with Section
3.19(b), within 60 days after such Appraisal Trigger Event, then (x) until such
new Appraisal is obtained or conducted, as applicable in accordance with Section
3.19(b), the Appraisal Reduction Amount shall equal 25% of the Stated Principal
Balance of such Required Appraisal Serviced Loan, and (y) upon receipt or
performance, as applicable in accordance with Section 3.19(b), of such new
Appraisal by the Special Servicer, the Appraisal Reduction Amount for such
Required Appraisal Serviced Loan will be recalculated in accordance with the
preceding sentence of this definition.
Also notwithstanding the foregoing, if and when any
Cross-Collateralized Mortgage Loan becomes a Required Appraisal Serviced Loan,
an Appraisal Reduction Amount shall be calculated for the entire
Cross-Collateralized Set to which that particular Cross-Collateralized Mortgage
Loan belongs as if such Cross-Collateralized Set was a single mortgage loan
secured by multiple properties, and any resulting Appraisal Reduction Amount for
such Cross-Collateralized Set shall be allocated among the respective
Cross-Collateralized Mortgage Loans forming that set on a pro rata basis in
accordance with the respective Stated Principal Balances of those Serviced
Loans.
In addition, notwithstanding the foregoing and for the avoidance of
doubt, for purposes of calculating Appraisal Reduction Amounts for determining
change of control with respect to the Serviced Whole Loan, references to the
Stated Principal Balance will be to the entire Stated Principal Balance thereof
(i.e., the aggregate Stated Principal Balances of the One Stamford Forum Note A
Mortgage Loan and the One Stamford Forum Note B).
For the avoidance of doubt and for purposes of calculating Appraisal
Reduction Amounts in connection with any P&I Advance required to be made under
this Agreement for a Mortgage Loan constituting a part of the Serviced Whole
Loan, such calculation shall be made based upon and allocated solely to the
Stated Principal Balance of the Mortgage Loan contained in the Serviced Whole
Loan and shall exclude the Stated Principal Balance of the One Stamford Forum
Note B.
Each Serviced Whole Loan will be treated as a single mortgage loan
for purposes of calculating an Appraisal Reduction Amount with respect to the
mortgage loans that comprise the Serviced Whole Loan.
For the avoidance of doubt, any Appraisal Reduction Amount with
respect to the Serviced Whole Loan shall be calculated based upon the aggregate
Stated Principal Balances of the One Stamford Forum Note A Mortgage Loan and the
One Stamford Forum Note B and shall be deemed allocated: first, to the One
Stamford Forum Note B to the extent of its outstanding principal balance and
then to the related Mortgage Loan.
"Appraisal Trigger Event": With respect to any Serviced Loan, any of
the following events:
(i) such Serviced Loan becomes a Modified Serviced Loan;
(ii) any such Serviced Loan becomes a Defaulted Serviced Loan;
(iii) the passage of 60 days after the Special Servicer receives
notice that the Mortgagor under such Serviced Loan becomes the subject of
bankruptcy, insolvency or similar proceedings that remain undischarged and
undismissed;
(iv) the passage of 60 days after the Special Servicer receives
notice that a receiver or similar official is appointed with respect to
the related Mortgaged Property;
(v) the related Mortgaged Property becomes an REO Property; or
(vi) if a Serviced Loan has been extended three times, upon the
sixtieth day after the third extension.
"Appraised Value": With respect to any Mortgaged Property and as of
any date of determination, the appraised value of a Mortgaged Property or REO
Property based upon the most recent Appraisal obtained or conducted, as
appropriate, pursuant to this Agreement.
"Approval Provisions": With respect to any Serviced 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 Serviced Loan set
forth below (in each case subject to the limitations set forth in Section
3.21(e) and Section 3.21(f):
(i) with respect to any Performing Serviced Loan, the Master
Servicer shall obtain the approval or consent of the Special Servicer in
connection with a Special Action;
(ii) with respect to (A) any Non-Partitioned Loan or Post CAP
Serviced Whole Loan that is a Performing Serviced Loan that involves an
extension of the maturity date of such Loan or (B) in connection with a
Special Action for any Non-Partitioned Loan or Post CAP Serviced Whole
Loan that is a Performing Serviced Loan, the Master Servicer shall obtain
the approval and consent of the Special Servicer and the Special Servicer
shall obtain the approval and consent of the Directing Certificateholder;
(iii) with respect to any Non-Partitioned Loan or Post CAP Serviced
Whole Loan that is a Specially Serviced Loan, the Special Servicer shall
obtain the approval and consent of the Directing Certificateholder in
connection with a Special Action;
(iv) with respect to the Serviced Whole Loan during any time period
that a related Control Appraisal Period does not exist, the Master
Servicer, if the Serviced Whole Loan is a then Performing Serviced Loan,
shall seek the approval and consent of the Special Servicer, and the
Special Servicer shall then obtain the approval and consent of the One
Stamford Forum Controlling Holder in connection with a Special Action; and
(v) with respect to the Serviced Whole Loan during any time period
that a related Control Appraisal Period does not exist, the Special
Servicer, if the Serviced Whole Loan is a then Specially Serviced Loan,
shall obtain the approval and consent of the One Stamford Forum
Controlling Holder in connection with a Special Action.
With respect to any extension or Special Action set forth in clauses
(i), (ii) and (iv) above, the Special Servicer shall respond to the Master
Servicer in writing (which may be via e-mail or facsimile) of its decision to
grant or deny the Master Servicer's request for approval and consent within ten
Business Days of its receipt of such request and all information reasonably
requested by the Special Servicer, as such time frame may be extended if the
Special Servicer is required to seek the consent of the Directing
Certificateholder, the One Stamford Forum Controlling Holder or any Rating
Agency. If the Special Servicer so fails to respond to the Master Servicer
within the time period referenced in the immediately preceding sentence, such
approval and consent shall be deemed granted. With respect to any Special Action
described in clauses (ii) and (iii) above, the Directing Certificateholder shall
respond to the Special Servicer within ten Business Days of its receipt of such
request in writing (which may be via e-mail or facsimile) and such request will
be deemed granted if the Directing Certificateholder does not respond in such
time frame. With respect to any Special Action described in clauses (iv) and (v)
above, the One Stamford Forum Controlling Holder shall respond in writing (which
may be via e-mail or facsimile) to the Special Servicer within ten Business Days
of its receipt of a request for its approval and consent, and such request will
be deemed granted if the required party does not respond in such time frame.
"ARD Loan": Any Mortgage Loan that provides for changes in payments
and accrual of interest, including the capture of Excess Interest from the
related mortgaged property and an increase in the applicable Mortgage Rate, if
it is not paid in full by the Anticipated Repayment Date. Each Mortgage Loan
that is an ARD Loan is identified on the Mortgage Schedule as such pursuant to
clause (xv) under the definition of Mortgage Loan Schedule.
"Asset Status Report": As defined in Section 3.21(d).
"Assignment of Leases": With respect to any Mortgaged Property, any
assignment of leases, rents and profits or similar document or instrument
executed by the Mortgagor in connection with the related Loan, as amended,
modified, renewed or extended through the date hereof and from time to time
hereafter.
"Assumed Monthly Payment": With respect to any Balloon Loan for its
Stated Maturity Date (provided that such Loan has not been paid in full, and no
other Liquidation Event has occurred in respect thereof, on or before the end of
the Collection Period in which such Stated Maturity Date occurs) and for any
subsequent Due Date on which such Serviced Loan remains outstanding and part of
the Trust Fund, if no Monthly Payment (other than a delinquent Balloon Payment)
is due for such Due Date, the scheduled monthly payment of principal and/or
interest deemed to be due in respect thereof on such Due Date equal to the
amount that would have been due in respect of such Serviced Loan on such Due
Date if it had been required to continue to accrue interest (exclusive, in the
case of an ARD Loan after its Anticipated Repayment Date, of Excess Interest) in
accordance with its terms, and to pay principal in accordance with the
amortization schedule (if any), in effect immediately prior to, and without
regard to the occurrence of, its most recent scheduled maturity date (as such
terms and amortization schedule may have been modified, and such maturity date
may have been extended, in connection with a bankruptcy or similar proceeding
involving the related Mortgagor or a modification, waiver or amendment of such
Serviced Loan granted or agreed to by the Master Servicer or Special Servicer
pursuant to Section 3.20). With respect to any REO Serviced Loan, for any Due
Date therefor as of which the related REO Property remains part of the Trust
Fund, the scheduled monthly payment of principal and/or interest deemed to be
due in respect thereof on such Due Date equal to the Monthly Payment that was
due (or, in the case of a Balloon Loan described in the preceding sentence of
this definition, the Assumed Monthly Payment that was deemed due) in respect of
the related Serviced Loan on the last Due Date prior to its becoming an REO
Serviced Loan.
"Available Distribution Amount": With respect to any Distribution
Date and each Mortgage Loan and, in the case of the One Stamford Forum Note A
Mortgage Loan (other than with respect to a P&I Advance required to be made by
the Trustee), only to the extent received by the Trustee pursuant to the related
Intercreditor Agreement, an amount equal to (a) the balance on deposit in the
Certificate Account and the Distribution Account as of the close of business on
the related Determination Date, including, without limitation, if and to the
extent on deposit therein as of such time, the Master Servicer Remittance Amount
for the related Master Servicer Remittance Date, any P&I Advances made by the
Master Servicer 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, the portion
of Loss of Value Payments deposited into the Certificate Account pursuant to
Section 3.05(g) and for the Distribution Date occurring in each March (or
February, if the related Distribution Date is the final Distribution Date), 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) (unless, in either case, the related Distribution Date is the final
Distribution Date), an amount equal to the related Withheld Amount pursuant to
Section 4.05; provided that the Available Distribution Amount for the Final
Distribution Date shall be calculated without regard to clauses (b)(i), (b)(ii)
and (b)(iii) of this definition.
"BACM": Banc of America Commercial Mortgage Inc., or its successors
in interest.
"Balloon Loan": Any Loan that by its original terms or by virtue of
any modification entered into as of the Closing Date (or, in the case of a
Replacement Mortgage Loan, as of the related date of substitution) provides for
an amortization schedule extending beyond its Stated Maturity Date and as to
which, in accordance with such terms, the Monthly Payment due on its Stated
Maturity Date is at least two times larger than the Monthly Payment due on the
Due Date next preceding its Stated Maturity Date.
"Balloon Payment": With respect to any Balloon Loan as of any date
of determination, the Monthly Payment payable on the Stated Maturity Date of
such Loan.
"Balloon Payment Interest Shortfall": With respect to any Balloon
Loan that is included as part of the Trust Fund, with a Stated Maturity Date
that occurs after, or that provides for a grace period for its Balloon Payment
that runs past, the Determination Date in any calendar month, and as to which
the Balloon Payment is actually received after the Determination Date in such
calendar month (but no later than its Stated Maturity Date or, if there is an
applicable grace period, beyond the end of such grace period), the amount of
interest, to the extent not collected from the related Determination Date, that
would have accrued on the principal portion of such Balloon Payment during the
period from the related Stated Maturity Date to, but not including, the first
day of the calendar month following the month of maturity (less the amount of
related Master Servicing Fees that would have been payable from that uncollected
interest and, if applicable, exclusive of any portion of that uncollected
interest that would have been Default Interest).
"Bank": As defined in Section 2.07.
"Bank of America": Bank of America, National Association, or its
successors in interest.
"Bankruptcy Code": The federal Bankruptcy Code, as amended from time
to time (Title 11 of the United States Code).
"Base Interest Fraction" As defined in Section 4.01(c).
"Base Prospectus": That certain prospectus dated July 20, 2006,
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 Mortgage Loan Seller pursuant to Section
4(b) of the Mortgage Loan Purchase and Sale Agreement.
"Business Day": Any day other than a Saturday, a Sunday or a day on
which banking institutions in Maryland, Florida, North Carolina, 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 2006-3 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, National Association, as Master Servicer, in trust for the registered
holders of Banc of America Commercial Mortgage Inc., Commercial Mortgage
Pass-Through Certificates, Series 2006-3, Certificate Account".
"Certificate Factor": With respect to any Class of REMIC II Regular
Certificates, as of any date of determination, a fraction, expressed as a
decimal carried to at least eight places, the numerator of which is the then
related Class Principal Balance or Class XW Notional Amount, as the case may be,
and the denominator of which is the related Initial Class Principal Balance or
Initial Class XW Notional Amount, as the case may be.
"Certificate Notional Amount": With respect to any Class XW
Certificate, as of any date of determination, the then notional amount of such
Certificate equal to the product of (a) the Percentage Interest evidenced by
such Certificate, multiplied by (b) the then Class XW Notional Amount of such
Class XW Certificate, as applicable.
"Certificate Owner": With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Certificate as reflected on the books
of the Depository or on the books of a Depository Participant or on the books of
an indirect participating brokerage firm for which a Depository Participant acts
as agent.
"Certificate Principal Balance": With respect to any Principal Pay
Certificate, as of any date of determination, the then outstanding principal
amount of such Certificate equal to the product of (a) the Percentage Interest
evidenced by such Certificate, multiplied by (b) the then Class Principal
Balance of the Class of Certificates to which such Certificate belongs.
"Certificate Register" and "Certificate Registrar": The register
maintained and the registrar appointed pursuant to Section 5.02.
"Certificateholder" or "Holder": The Person in whose name a
Certificate is registered in the Certificate Register; provided that solely for
the purposes of giving any consent, approval or waiver pursuant to this
Agreement, any Certificate registered in the name of the Depositor, the Mortgage
Loan Seller, the Master Servicer, the Special Servicer, the REMIC Administrator
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 12.01(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 Parties": As defined in Section 11.06.
"Certifying Person": As defined in Section 11.06.
"Certifying Servicer" means the Master Servicer, the Special
Servicer, the Trustee or an Additional Servicer, as the case may be.
"Class": Collectively, all of the Certificates bearing the same
alphabetical and, if applicable, numerical Class designation, and each REMIC I
Regular Interest and Corresponding Component.
"Class A Certificates": Any one of the Class A Senior Certificates
and the Class A Junior Certificates.
"Class A Junior Certificates": The Class A-M and Class A-J
Certificates.
"Class A Senior Certificate": Any one of the Class X-0, Xxxxx X-0,
Class A-3, Class A-4 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
5.6850%.
"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-5
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 5.8900%;
provided, however, that the Class A-1A Pass-Through Rate shall not exceed the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date.
"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
5.8060%.
"Class A-3 Certificate": Any one of the Certificates with a "Class
A-3" designation on the face thereof, substantially in the form of Exhibit A-3
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class A-3 Pass-Through Rate": A per annum rate equal to 5.8870%;
provided, however, that the Class A-3 Pass-Through Rate shall not exceed the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class A-4 Certificate": Any one of the Certificates with a "Class
A-4" designation on the face thereof, substantially in the form of Exhibit A-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 5.8890%;
provided, however, that the Class A-4 Pass-Through Rate shall not exceed the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class A-J Certificate": Any one of the Certificates with a "Class
A-J" designation on the face thereof, substantially in the form of Exhibit A-8
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
less 0.0890%.
"Class A-M Certificate": Any one of the Certificates with a "Class
A-M" designation on the face thereof, substantially in the form of Exhibit A-7
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class A-M Pass-Through Rate": A per annum rate equal to the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date
less 0.1080%.
"Class B Certificate": Any one of the Certificates with a "Class B"
designation on the face thereof, substantially in the form of Exhibit A-9
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class B Pass-Through Rate": A per annum rate equal to the Weighted
Average Adjusted Net Mortgage Rate for the related Distribution Date less
0.0390%.
"Class C Certificate": Any one of the Certificates with a "Class C"
designation on the face thereof, substantially in the form of Exhibit A-10
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class C Pass-Through Rate": A per annum rate equal to the Weighted
Average Adjusted Net Mortgage Rate for the related Distribution Date less
0.0100%.
"Class D Certificate": Any one of the Certificates with a "Class D"
designation on the face thereof, substantially in the form of Exhibit A-11
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class D Pass-Through Rate": A per annum rate equal to the Weighted
Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class E Certificate": Any one of the Certificates with a "Class E"
designation on the face thereof, substantially in the form of Exhibit A-12
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class E Pass-Through Rate": A per annum rate equal to the Weighted
Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class F Certificate": Any one of the Certificates with a "Class F"
designation on the face thereof, substantially in the form of Exhibit A-13
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class F Pass-Through Rate": A per annum rate equal to the Weighted
Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class G Certificate": Any one of the Certificates with a "Class G"
designation on the face thereof, substantially in the form of Exhibit A-14
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class G Pass-Through Rate": A per annum rate equal to the Weighted
Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class H Certificate": Any one of the Certificates with a "Class H"
designation on the face thereof, substantially in the form of Exhibit A-15
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class H Pass-Through Rate": A per annum rate equal to the Weighted
Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class J Certificate": Any one of the Certificates with a "Class J"
designation on the face thereof, substantially in the form of Exhibit A-16
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class J Pass-Through Rate": A per annum rate equal to 5.5410%;
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-17
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class K Pass-Through Rate": A per annum rate equal to 5.5410%;
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-18
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class L Pass-Through Rate": A per annum rate equal to 5.5410%;
provided, however, that the Class L Pass-Through Rate shall not exceed the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class M Certificate": Any one of the Certificates with a "Class M"
designation on the face thereof, substantially in the form of Exhibit A-19
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class M Pass-Through Rate": A per annum rate equal to 5.5410%;
provided, however, that the Class M Pass-Through Rate shall not exceed the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class N Certificate": Any one of the Certificates with a "Class N"
designation on the face thereof, substantially in the form of Exhibit A-20
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class N Pass-Through Rate": A per annum rate equal to 5.5410%;
provided, however, that the Class N Pass-Through Rate shall not exceed the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class O Certificate": Any one of the Certificates with a "Class O"
designation on the face thereof, substantially in the form of Exhibit A-21
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class O Pass-Through Rate": A per annum rate equal to 5.5410%;
provided, however, that the Class O Pass-Through Rate shall not exceed the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class P Certificate": Any one of the Certificates with a "Class P"
designation on the face thereof, substantially in the form of Exhibit A-22
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class P Pass-Through Rate": A per annum rate equal to 5.5410%;
provided, however, that the Class P Pass-Through Rate shall not exceed the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class Principal Balance": The aggregate principal amount of any
Class of Principal Pay Certificates outstanding as of any date of determination.
As of the Closing Date, the Class Principal Balance of each such Class of
Certificates shall equal the Initial Class Principal Balance thereof. On each
Distribution Date, the Class Principal Balance of each Class of Principal Pay
Certificates shall be permanently reduced by the amount of any distributions of
principal made thereon on such Distribution Date pursuant to Section 4.01(b),
and 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-23
attached hereto, and evidencing 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-24
attached hereto, and evidencing the sole Class of "residual interest" in REMIC
II for purposes of the REMIC Provisions.
"Class V Certificate": Any one of the Certificates with a "Class V"
designation on the face thereof, substantially in the form of Exhibit A-25
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-6
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, 0.2054% 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": August 2, 2006.
"CMSA": The Commercial Mortgage Securities Association, or any
association or organization that is a successor thereto. If neither such
association nor any successor remains in existence, "CMSA" shall be deemed to
refer to such other association or organization as may exist whose principal
membership consists of servicers, trustees, issuers, initial purchasers,
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 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 eight 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
Operating Statement Analysis Report, (v) CMSA NOI Adjustment Worksheet, (vi)
CMSA REO Status Report, (vii) CMSA Servicer Watch List and (viii) CMSA Loan
Level Reserve - LOC Report;
(c) the CMSA Advance Recoverability Report; and
(d) such other reports as CMSA may designate as part of the CMSA
Investor Reporting Package that are reasonably acceptable to the Master
Servicer, Special Servicer or Trustee, as applicable.
"CMSA Loan Level Reserve-LOC Report": The monthly report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Loan Level Reserve LOC Report" available as of the
Closing Date on the CMSA Website, or such other form for the presentation of
such information and containing such additional information as may from time to
time be recommended by the CMSA for commercial mortgage securities transactions
generally and is reasonably acceptable to the Master Servicer.
"CMSA Loan Periodic Update File": The monthly report substantially
in the form of, and containing the information called for in, the downloadable
form of the "Loan Periodic Update File" available as of the Closing Date on the
CMSA Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage securities transactions generally and is
reasonably acceptable to the Master Servicer, the Special Servicer and the
Trustee.
"CMSA Loan Setup File": The report substantially in the form of, and
containing the information called for in, the downloadable form of the "Loan
Setup File" available as of the Closing Date on the CMSA Website, or such other
form for the presentation of such information and containing such additional
information as may from time to time be recommended by the CMSA for commercial
mortgage securities transactions generally and is reasonably acceptable to the
Master Servicer, the Special Servicer and the Trustee.
"CMSA NOI Adjustment Worksheet": A report substantially in the form
of, and containing the information called for in, the downloadable form of the
"NOI Adjustment Worksheet" available as of the Closing Date on the CMSA Website,
or such other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage securities transactions generally and is acceptable to the
Master Servicer or the Special Servicer, as applicable, and in any event, shall
present the computations made in accordance with the methodology described in
such form to "normalize" the full year net operating income and debt service
coverage numbers used in the other reports required by this Agreement.
"CMSA Operating Statement Analysis Report": A report substantially
in the form of, and containing the information called for in, the downloadable
form of the "Operating Statement Analysis Report" available as of the Closing
Date on the CMSA Website or in such other form for the presentation of such
information and containing such additional information as may from time to time
be recommended by the CMSA for commercial mortgage-backed securities
transactions generally and is reasonably acceptable to the Master Servicer.
"CMSA Property File": A report substantially in the form of, and
containing the information called for in, the downloadable form of the "Property
File" available as of the Closing Date on the CMSA Website, or such other form
for the presentation of such information and containing such additional
information as may from time to time be recommended by the CMSA for commercial
mortgage securities transactions generally and is reasonably acceptable to the
Master Servicer and the Special Servicer.
"CMSA Reconciliation of Funds Report": The report substantially in
the form of, and containing the information called for in, the downloadable form
of the "Reconciliation of Funds Report" available as of the Closing Date on the
CMSA Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage securities transactions generally and is
reasonably acceptable to the Trustee.
"CMSA REO Status Report": A report substantially in the form of, and
containing the information called for in, the downloadable form of the "REO
Status Report" available as of the Closing Date on the CMSA Website, or in such
other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage securities transactions generally and is reasonably
acceptable to the Special Servicer.
"CMSA Servicer Watch List": For any Determination Date, a report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Servicer Watch List" available as of the Closing Date
on the CMSA Website, or in such other final form for the presentation of such
information and containing such additional information as may from time to time
be promulgated as recommended by the CMSA for commercial mortgage securities
transactions generally and, insofar as it requires the presentation of
information in addition to that called for by the form of the "Servicer Watch
List" available as of the Closing Date on the CMSA Website, is reasonably
acceptable to the Master Servicer or the Special Servicer, as applicable.
"CMSA Special Servicer Loan File": The monthly report substantially
in the form of, and containing the information called for in, the downloadable
form of the "Special Servicer Loan File" available as of the Closing Date on the
CMSA Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage securities transactions generally and is
reasonably acceptable to the Special Servicer.
"CMSA Website": The CMSA's Website located at "xxx.xxxx.xxx" or such
other primary website as the CMSA may establish for dissemination of its report
forms.
"Code": The Internal Revenue Code of 1986, as amended.
"Collection Period": With respect to any Distribution Date, the
period commencing immediately following the Determination Date in the calendar
month preceding the month in which such Distribution Date occurs (or, in the
case of the initial Distribution Date, commencing immediately following the
Cut-off Date) and ending on and including the Determination Date in the calendar
month in which such Distribution Date occurs.
"Commission": The Securities and Exchange Commission.
"Compensating Interest Payment": With respect to any Distribution
Date, any payment made by the Master Servicer pursuant to Section 3.19(e) to
cover any Balloon Payment Interest Shortfall and Prepayment Interest Shortfalls
incurred during the related Collection Period.
"Component": Each of Component XX-0, Xxxxxxxxx XX-0, Xxxxxxxxx XX-0,
Component XX-0, Xxxxxxxxx XX-0X, Component XA-M, Component XA-J, Component XB,
Component XC, Component XD, Component XE, Component XF, Component XG, Component
XH, Component XJ, Component XK, Component XL, Component XM, Component XN,
Component XO and Component XP.
"Component Notional Amount": With respect to each Component and any
date of determination, an amount equal to the then REMIC I Principal Balance of
its Corresponding REMIC I Regular Interest.
"Component XA-1": One of the 21 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 21 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 21 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 21 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 21 components of the Class XW
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LA-4 as of any date of
determination.
"Component XA-J": One of the 21 components of the Class XW
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LA-J as of any date of
determination.
"Component XA-M": One of the 21 components of the Class XW
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LA-M as of any date of
determination.
"Component XB": One of the 21 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 21 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 21 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 21 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 21 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 21 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 21 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 21 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 21 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 21 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 21 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 21 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 21 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 21 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": With respect to the One Stamford Forum
Whole Loan, the One Stamford Forum Control Appraisal Period.
"Controlling Class": As of any date of determination, the
outstanding Class of Sequential Pay Certificates with the lowest Payment
Priority (the Class A Senior Certificates being treated as a single Class for
this purpose) that has a then outstanding Class Principal Balance at least equal
to 25% of the Initial Class Principal Balance thereof (or, if no Class of
Sequential Pay Certificates has a Class Principal Balance at least equal to 25%
of the Initial Class Principal Balance thereof, then the "Controlling Class"
shall be the outstanding Class of Sequential Pay Certificates with the then
largest outstanding Class Principal Balance).
"Controlling Class Certificateholders": Each Holder (or Certificate
Owner, if applicable) of a Certificate of the Controlling Class as certified to
the Trustee from time to time by such Holder (or Certificate Owner).
"Controlling Class Optionholder": The Purchase Option held by the
Majority Certificateholder of the Controlling Class pursuant to Section 3.18(c).
"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 Xxxxx Fargo Center, Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx,
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000, Corporate Trust Services (CMBS) BACM 2006-3,
and (ii) for all other purposes, 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx
00000, Attention: Corporate Trust Services Group (CMBS), Banc of America
Commercial Mortgage Inc., Commercial Mortgage Pass-Through Certificates, Series
2006-3, and with respect to any successor Trustee, the principal office thereof
as designated in writing to the Depositor.
"Corrected Serviced Loan": Any Serviced Loan that had been a
Specially Serviced Loan but as to which all Servicing Transfer Events have
ceased to exist other than in connection with a sale pursuant to Section 3.18.
"Corresponding Certificate": As defined in the Preliminary Statement
with respect to any Corresponding Component or any Corresponding REMIC I Regular
Interest.
"Corresponding Component": As defined in the Preliminary Statement
with respect to any Corresponding Certificate or any Corresponding REMIC I
Regular Interest.
"Corresponding 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 Mortgage Loan": Any Loan that is, by its
terms, cross-defaulted and cross-collateralized with any other Loan.
"Cross-Collateralized Set": Any set of Loans that is cross-defaulted
and cross-collateralized with each other.
"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:
(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, made by or on behalf of the related borrower or advanced in respect
of the Mortgage Loans in the Mortgage Pool or in such Loan Group, as applicable,
and any REO Serviced Loans for their respective Due Dates occurring during the
related Collection Period or any prior Collection Period (if not previously
distributed);
(b) all Principal Prepayments received on the Mortgage Loans in the
Mortgage Pool or in such Loan Group, as applicable, during the related
Collection Period;
(c) with respect to any Balloon Loan that is included in the
Mortgage Pool or in such Loan Group, as applicable, 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 (including any amount related to the Loss of Value
Payments to the extent that such amount was transferred into the Certificate
Account pursuant to Section 3.05(g) during the related Collection Period) that
were identified and applied by the Master Servicer as recoveries of principal
thereof, in each case net of any portion of such amounts that represents a
recovery of the principal portion of any Monthly Payment (other than a Balloon
Payment) due, or of the principal portion of any Assumed Monthly Payment deemed
due, in respect of any such Mortgage Loan on a Due Date during or prior to the
related Collection Period and not previously recovered; and
(e) all Liquidation Proceeds (net of Liquidation Expenses),
Insurance Proceeds (net of related expenses) and Condemnation Proceeds (net of
related expenses) and REO Revenues (net of related expenses) received on or in
respect of any REO Properties during the related Collection Period that were
identified and applied by the Master Servicer as recoveries of principal of the
related REO Serviced Loans, in each case net of any portion of such amounts that
represents a recovery of the principal portion of any Monthly Payment (other
than a Balloon Payment) due, or of the principal portion of any Assumed Monthly
Payment deemed due, in respect of any such REO Serviced Loan or the predecessor
Mortgage Loan on a Due Date during or prior to the related Collection Period and
not previously recovered.
"Custodian": A Person who is at any time appointed by the Trustee
pursuant to Section 8.11 as a document custodian for the Mortgage Files, which
Person shall not be the Depositor, the Mortgage Loan Seller or an Affiliate of
either of them.
"Cut-off Date": August 1, 2006.
"Cut-off Date Balance": With respect to any Mortgage Loan or One
Stamford Forum Note B, 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.
"Debt Service Coverage Ratio": With respect to any Loan, as of any
date of determination, and calculated without regard to any
cross-collateralization feature of such Loan, the ratio of (x) the Net Cash Flow
(before payment of any debt service on such Loan) generated by the related
Mortgaged Property or Mortgaged Properties during the most recently ended period
of not more than 12 months or less than three months for which financial
statements (whether or not audited) have been received by or on behalf of the
Mortgage Loan Seller (prior to the Closing Date) or the Master Servicer or the
Special Servicer (following the Closing Date), to (y) the product of the amount
of the Monthly Payment in effect for such Loan as of such date of determination,
multiplied by the number of months represented in the financial statements. The
Master Servicer may, in accordance with CMSA reporting standards, report Net
Cash Flow with respect to each Mortgaged Property where one or more Loans are
secured by multiple Mortgaged Properties; provided, however, that for purposes
of determining Debt Service Coverage Ratio compliance, calculations shall be
made at the Loan level.
"Default Charges": Any Default Interest and/or late payment charges
that are paid or payable, as the context may require, in respect of any Loan or
REO Serviced Loan.
"Default Interest": With respect to any Loan (or successor REO
Serviced Loan), any amounts collected thereon, other than late payment charges
or Prepayment Premiums, that represent interest in excess of interest accrued on
the principal balance of such Loan (or REO Serviced Loan) at the related
Mortgage Rate, such excess interest arising out of a default under such Loan.
"Defaulted Serviced Loan": A Serviced Loan:
(1) that is delinquent 60 days (without giving effect to any grace
period or acceleration of payments under the Mortgage or Mortgage Note) or more
in respect of a Monthly Payment (not including the Balloon Payment);
(2) that is delinquent with respect to a Balloon Payment, provided,
however that:
(a) if (i) the related Borrower is actively seeking a refinancing
commitment, (ii) the related Borrower continues to make payments in the amount
of its Assumed Monthly Payment and (iii) the Directing Certificateholder
consents, then such Mortgage Loan shall not become a Defaulted Serviced Loan for
60 days beyond the related Maturity Date (without giving effect to any grace
period or acceleration of payments under the Mortgage or Mortgage Note); and
(b) if (i) the related Mortgagor delivers to the Master Servicer on
or before the 60th day after the related Maturity Date (without giving effect to
any grace period or acceleration of payments under the Mortgage or Mortgage
Note) a refinancing commitment reasonably acceptable to the Master Servicer,
(ii) the related Borrower continues to make payments in the amount of its
Assumed Monthly Payment and (iii) the Directing Certificateholder consents, then
such Mortgage Loan shall not become a Defaulted Serviced Loan for such longer
period, not to exceed 120 days beyond the related Maturity Date, during which
the refinancing would occur; or
(3) as to which the Master Servicer or the Special Servicer has, by
written notice to the related mortgagor, accelerated the maturity of the
indebtedness evidenced by the related Mortgage Note
"Defaulting Party": As defined in Section 7.01(b).
"Defective Mortgage Loan": Any Mortgage Loan as to which there
exists a Material Breach or a Material Document Defect that was not cured in all
material respects.
"Definitive Certificate": As defined in Section 5.03(a).
"Deleted Mortgage Loan": A Defective Mortgage Loan that is
repurchased from the Trust or replaced with one or more Replacement Mortgage
Loans, in either case as contemplated by Section 2.03.
"Denomination": As defined in Section 5.01(a).
"Depositor": Banc of America Commercial Mortgage Inc., or its
successor in interest.
"Depository": The Depository Trust Company, or any successor
Depository hereafter named. The nominee of the initial Depository for purposes
of registering those Certificates that are to be Book-Entry Certificates, is
Cede & Co. The Depository shall at all times be a "clearing corporation" as
defined in Section 8-102(3) of the Uniform Commercial Code of the State of New
York and a "clearing agency" registered pursuant to the provisions of Section
17A of the Exchange Act.
"Depository Participant": A broker, dealer, bank or other financial
institution or other Person for whom from time to time the Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
"Depository Rules": As defined in Section 5.02(b).
"Determination Date": With respect to any Distribution Date, the
earlier of (i) the sixth day of the month in which such Distribution Date
occurs, or if such sixth day is not a Business Day, the immediately preceding
Business Day, and (ii) fourth Business Day before such Distribution Date.
"Determination Information": As defined in Section 3.18(b).
"Directing Certificateholder": The Controlling Class
Certificateholder (or its designee) selected by the Majority Certificateholder
of the Controlling Class, as certified by the Trustee from time to time;
provided, however, that (i) absent such selection, or (ii) until a Directing
Certificateholder is so selected, or (iii) upon receipt of a notice from a
majority of the Controlling Class, by Certificate Principal Balance, that a
Directing Certificateholder is no longer designated, the Controlling Class
Certificateholder that owns the largest aggregate Certificate Principal Balance
of the Controlling Class will be the Directing Certificateholder. The initial
Directing Certificateholder is American Capital Strategies, Ltd.
"Directly Operate": With respect to any REO Property, the furnishing
or rendering of services to the tenants thereof, the management or operation of
such REO Property, the holding of such REO Property primarily for sale to
customers (other than the sale of an REO Property pursuant to Section 3.18, the
performance of any construction work thereon or any use of such REO Property in
a trade or business conducted by REMIC I other than through an Independent
Contractor; provided, however, that the Special Servicer (or any Sub-Servicer on
behalf of the Special Servicer) shall not be considered to Directly Operate an
REO Property solely because the Special Servicer (or any Sub-Servicer on behalf
of the Special Servicer) establishes rental terms, chooses tenants, enters into
or renews leases, deals with taxes and insurance, or makes decisions as to, or
funds, repairs or capital expenditures with respect to such REO Property
(including, without limitation, construction activity to effect repairs or in
conjunction with leasing activity).
"Discount Rate" As defined in Section 4.01(c).
"Disqualified Non-U.S. Persons": With respect to a Class R-I or
Class R-II Certificate, any Non-U.S. Person or agent thereof other than (i) a
Non-U.S. Person that holds the Class R-I or Class R-II Certificate in connection
with the conduct of a trade or business within the United States and has
furnished the transferor and the Certificate Registrar with an effective IRS
Form W-8ECI (or successor form) or (ii) a Non-U.S. Person that has delivered to
both the transferor and the Certificate Registrar an opinion of a nationally
recognized tax counsel to the effect that the transfer of the Class R-I or Class
R-II Certificate to it is in accordance with the requirements of the Code and
the regulations promulgated thereunder and that such transfer of the Class R-I
or Class R-II Certificate will not be disregarded for federal income tax
purposes.
"Disqualified Organization": Any of the following: (i) the United
States or a possession thereof, any State or any political subdivision thereof,
or any agency or instrumentality of any of the foregoing (other than an
instrumentality that is a corporation if all of its activities are subject to
tax and, except for Xxxxxxx Mac, a majority of its board of directors is not
selected by any such governmental unit), (ii) a foreign government,
international organization, or any agency or instrumentality of either of the
foregoing, (iii) any organization (except certain farmers' cooperatives
described in Section 521 of the Code) that is exempt from the tax imposed by
Chapter 1 of the Code (unless such organization is subject to the tax imposed by
Section 511 of the Code on unrelated business taxable income), (iv) rural
electric and telephone cooperatives described in Section 1381 of the Code or (v)
any other Person so designated by the REMIC Administrator based upon an Opinion
of Counsel (provided to the Trustee by such Person at its expense) that the
holding of an Ownership Interest in a Residual Certificate by such Person may
cause the Trust or any Person having an Ownership Interest in any Class of
Certificates, other than such Person, to incur a liability for any federal tax
imposed under the Code that would not otherwise be imposed but for the Transfer
of an Ownership Interest in a Residual Certificate to such Person. The terms
"United States", "State" and "international organization" shall have the
meanings set forth in Section 7701 of the Code or successor provisions.
"Distributable Certificate Interest": For any Distribution Date with
respect to any Class of REMIC II Regular Certificates, the Accrued Certificate
Interest in respect of such Class of Certificates for such Distribution Date,
reduced (to not less than zero) by that portion, if any, of the Net Aggregate
Prepayment Interest Shortfall for such Distribution Date allocated to such Class
of Certificates as set forth below. The Net Aggregate Prepayment Interest
Shortfall, if any, for each Distribution Date shall be allocated, 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.
"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 "Xxxxx 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 2006-3, 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
September 2006.
"Distribution Date Statement": As defined in Section 4.02(a).
"Document Defect": With respect to any Mortgage Loan, any document
required to be part of the related Mortgage File that has not been properly
executed, is missing, contains information that does not conform in any material
respect with the corresponding information set forth in the Mortgage Loan
Schedule (and the terms of such document have not been modified by written
instrument contained in the related Mortgage File), or does not appear to be
regular on its face.
"Domestic Global Certificate": Any of the single, permanent global
certificates that represents the Certificates sold in reliance on Rule 144A.
"DTC": As defined in Section 5.03(d).
"Due Date": With respect to (i) any Loan on or prior to its Stated
Maturity Date, the day of the month set forth in the related Mortgage Note on
which each Monthly Payment on such Loan is scheduled to be first due; (ii) any
Loan after its Stated Maturity Date, the day of the month set forth in the
related Mortgage Note on which each Monthly Payment on such Loan had been
scheduled to be first due; and (iii) any REO Serviced Loan, the day of the month
set forth in the related Mortgage Note on which each Monthly Payment on the
related Loan had been scheduled to be first due.
"Eligible Account": Any of (i) an account maintained with a federal
or state chartered depository institution or trust company, including, without
limitation, the Trustee (if it meets the following rating criteria), the
long-term unsecured debt obligations of which are rated no less than "A" 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, or KeyBank National Association rated no less than "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, pursuant hereto, the Special Servicer has the option to
make or to request the Master Servicer to make, that must be made within five
Business Days of the Special Servicer's becoming aware that it must be made to
avoid any material penalty, any material harm to a Mortgaged Property or any
other material adverse consequence to the Trust Fund.
"Environmental Insurance Policy": With respect to any Mortgaged
Property or REO Property, any insurance policy covering pollution conditions
and/or other environmental conditions in effect with respect to such Mortgaged
Property or REO Property.
"ERISA": The Employee Retirement Income Security Act of 1974, as
amended.
"ERISA Restricted Certificate": Any Non-Investment Grade Sequential
Pay Certificate; provided, that any such Certificate (a) will cease to be
considered an ERISA Restricted Certificate and (b) will cease to be subject to
the transfer restrictions contained in Section 5.02(c) if, as of the date of a
proposed transfer of such Certificate, either (i) it is rated in one of the four
highest generic ratings categories by a Rating Agency or (ii) relevant
provisions of ERISA would permit transfer of such Certificate to a Plan.
"Escrow Payment": Any payment received by the Master Servicer or the
Special Servicer for the account of any Mortgagor for application toward the
payment of real estate taxes, assessments, insurance premiums and similar items
in respect of the related Mortgaged Property.
"Euroclear": Euroclear Bank S.A./N.V., as operator of the Euroclear
System, or its successor in such capacity.
"Event of Default": One or more of the events described in Section
7.01(a).
"Excess Interest": With respect to any ARD Loan after its
Anticipated Repayment Date, all interest accrued on the principal balance of
such ARD Loan at the Excess Interest Rate (the payment of which interest shall,
under the terms of such Loan, be deferred until the entire outstanding principal
balance of such ARD Loan has been paid), together with all interest, if any,
accrued at the related Mortgage Rate on such deferred interest.
"Excess Interest Distribution Account": The segregated account or
sub-account of the Distribution Account created and maintained by the Trustee
pursuant to Section 4.06, which shall be entitled "Xxxxx Fargo Bank, N.A., in
trust for the registered Holders of Banc of America Commercial Mortgage, Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2006-3, Excess Interest
Distribution Account", and which must be an Eligible Account. The Excess
Interest Distribution Account shall not be an asset of REMIC I or REMIC II
formed hereunder.
"Excess Interest 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.
"Excess Interest Rate": With respect to any ARD Loan after its
Anticipated Repayment Date, the incremental increase in the Mortgage Rate for
such Loan resulting from the passage of such Anticipated Repayment Date.
"Excess Liquidation Proceeds": An amount equal to the excess, if
any, of (a) the Net Liquidation Proceeds from the sale or liquidation of a
Specially Serviced Loan or REO Property, over (b) the sum of: (i) the amount
needed to pay off the Loan or related REO Serviced Loan in full, including any
related Workout-Delayed Reimbursement Amounts or Unliquidated Advances; (ii) all
unpaid Advances and any unpaid Advance Interest thereon; and (iii) any related
Liquidation Fee. For the avoidance of doubt, Excess Liquidation Proceeds
allocable to the One Stamford Forum Note B shall not be an asset of the Trust
Fund or REMIC I or REMIC II.
"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 "Xxxxx 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 2006-3, Excess Liquidation Proceeds Account".
"Exchange Act": The Securities Exchange Act of 1934, as amended, and
the rules and regulations thereunder.
"Exchange Certificate": The certificate necessary to exchange an
interest in a Regulation S Global Certificate for an interest in a Domestic
Global Certificate, which is in the form of Exhibit Q attached hereto, or the
certificate necessary to exchange an interest in a Domestic Global Certificate
for an interest in a Regulation S Global Certificate, which is in the form of
Exhibit O or Exhibit P, as applicable, hereto, in each case as described in
Section 5.02(m).
"Xxxxxx Mae": The Federal National Mortgage Association or any
successor.
"FBI Regional HQ Building Mezzanine Intercreditor Agreement": That
certain Intercreditor Agreement, dated as of August 1, 2006, by and between Bank
of America, as "Senior Lender" and the FBI Regional HQ Building Mezzanine Loan
Holder as "Mezzanine Lender".
"FBI Regional HQ Building Mezzanine Loan": That certain mezzanine
loan related to the FBI Regional HQ Building Mortgage Loan, which is evidenced
by that certain Loan Agreement, dated as of August 1, 2006, by and between Bank
of America, National Association and the FBI Regional HQ Building Mezzanine Loan
Holder.
"FBI Regional HQ Building Mezzanine Loan Holder": Banc of America
Structured Notes, Inc., and its permitted successors or assigns.
"FBI Regional HQ Building Mortgage Loan": That certain Mortgage Loan
identified as Loan No. 59458 on the Mortgage Loan Schedule.
"FDIC": The Federal Deposit Insurance Corporation or any successor.
"Final Distribution Date": The final Distribution Date on which any
distributions are to be made on the Certificates as contemplated by Section
9.01.
"Final Recovery Determination": A determination made by the Special
Servicer, in its reasonable, good faith judgment and in accordance with the
Servicing Standard, with respect to any Loan or REO Property (other than a Loan
that is paid in full and other than a Loan or REO Property, as the case may be,
that is repurchased or replaced by the Mortgage Loan Seller pursuant to the
Mortgage Loan Purchase and Sale Agreement or purchased by the Master Servicer,
the Special Servicer or any Controlling Class Certificateholder(s) pursuant to
Section 9.01), that there has been a recovery of all related Insurance Proceeds,
Condemnation Proceeds, Liquidation Proceeds and other payments or recoveries
that will ultimately be recoverable.
"FIRREA": The Financial Institutions Reform, Recovery and
Enforcement Act of 1989 (as amended).
"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 herein referenced shall be deemed
to refer to the equivalent ratings of the party so designated.
"Form 8-K Disclosure Information": As defined in Section 11.07.
"Xxxxxxx Mac": The Federal Home Loan Mortgage Corporation or any
successor.
"Free Writing Prospectus": The meaning assigned to "Free Writing
Prospectus" in the Underwriting Agreement.
"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 U.S. 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 REMIC I within the meaning of Section 856(d)(3) of
the Code if 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 REMIC I does not receive or derive any income from
such Person and provided that the relationship between such Person and REMIC I
is at arm's length, all within the meaning of Treasury Regulations Section
1.856-4(b)(5), or (ii) any other Person upon receipt by the Trustee and the
REMIC Administrator of an Opinion of Counsel, which shall be at no expense to
the Trustee, the REMIC Administrator or the Trust, to the effect that the taking
of any action in respect of any REO Property by such Person, subject to any
conditions therein specified, that is otherwise herein contemplated to be taken
by an Independent Contractor will not cause such REO Property to cease to
qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code, or cause any income realized in respect of such REO Property to fail
to qualify as Rents from Real Property.
"Initial Class 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 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 $1,964,746,808.
"Initial Pool Balance": The aggregate Cut-off Date Balance of all
the Mortgage Loans included in the Trust Fund as of the Closing Date.
"Initial Resolution Period": As defined in Section 2.03.
"Institutional Accredited Investor": As defined in Section 5.02(b).
"Insurance Policy": With respect to any Loan or Serviced Whole 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 Agreement": The One Stamford Forum Intercreditor
Agreement.
"Interest Accrual Basis": The basis on which interest accrues in
respect of any Mortgage Loan, any REMIC I Regular Interest or any Class of REMIC
II Regular Certificates, consisting of one of the following: (i) a 30/360 Basis;
or (ii) an Actual/360 Basis.
"Interest Accrual Period": With respect to each Class of REMIC I
Regular Interests and each Class of REMIC II Regular Certificates for any
Distribution Date, the calendar month immediately preceding the month in which
such Distribution Date occurs.
"Interest Reserve Account": The segregated account or sub-account of
the Certificate Account created and maintained by the Master Servicer pursuant
to Section 4.05 in trust for the Certificateholders, which shall be entitled
"Bank of America, National Association on behalf of Xxxxx 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 2006-3,
Interest Reserve Account".
"Interested Person": The Depositor, the Mortgage Loan Seller, the
Master Servicer, any Sub-Servicer, the Special Servicer, the Trustee, any Holder
of a Certificate or any Affiliate of any such Person.
"Investment Account": As defined in Section 3.06(a).
"Investment Grade Sequential Pay Certificates": The Class A, Class
B, Class C, Class D, Class E, Class F, Class G and Class H Certificates.
"Investment Representation Letter": As defined in Section 5.02(b).
"IRS": The Internal Revenue Service or any successor.
"Late Collections": With respect to any Serviced Loan, all amounts
received thereon during any Collection Period, whether as payments, Insurance
Proceeds, Condemnation Proceeds, Liquidation Proceeds or otherwise, that
represent late collections of the principal and/or interest portions of a
Monthly Payment (other than a Balloon Payment) or an Assumed Monthly Payment in
respect of such Serviced Loan due or deemed due, as the case may be, for a Due
Date in a previous Collection Period, or for a Due Date coinciding with or
preceding the Cut-off Date, and not previously received or recovered. With
respect to any REO Serviced Loan, all amounts received in connection with the
related REO Property during any Collection Period, whether as Insurance
Proceeds, Condemnation Proceeds, Liquidation Proceeds, REO Revenues or
otherwise, that represent late collections of the principal and/or interest
portions of a Monthly Payment (other than a Balloon Payment) or an Assumed
Monthly Payment in respect of the related Serviced Loan or of an Assumed Monthly
Payment in respect of such REO Serviced Loan due or deemed due, as the case may
be, for a Due Date in a previous Collection Period and not previously received
or recovered.
"Letter of Credit": With respect to any Loan or Serviced Whole 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 Serviced Loan, any of the
following events: (i) such Serviced Loan is paid in full; (ii) a Final Recovery
Determination is made with respect to such Serviced Loan; (iii) the related
Mortgage Loan (or related REO Serviced Loan) is repurchased by the Mortgage Loan
Seller pursuant to Section 4 of the Mortgage Loan Purchase Agreement; (iv) the
related Mortgage Loan is purchased by the Directing Certificateholder, the
Special Servicer, the One Stamford Forum Controlling Holder (if the related
Defaulted Serviced Loan is the Mortgage Loan included in the related Whole Loan)
or an assignee of such Person pursuant to Section 3.18(c) or the related
Mezzanine Loan Holder (if the related Defaulted Serviced Loan has a related
Mezzanine Loan) pursuant to any Mezzanine Intercreditor Agreement; (v) such Loan
is purchased by the Special Servicer or the Master Servicer pursuant to Section
9.01; or (vi) in the case of a Whole Loan, such Whole Loan is purchased by the
Whole Loan Purchase Option Holder or its designee pursuant to the related
Intercreditor Agreement. With respect to any REO Property (and the related REO
Serviced Loan), any of the following events: (i) a Final Recovery Determination
is made with respect to such REO Property or (ii) such REO Property is purchased
by the Master Servicer or the Special Servicer pursuant to Section 9.01.
"Liquidation Expenses": All customary, reasonable and necessary
"out-of-pocket" costs and expenses due and owing (but not otherwise covered by
Servicing Advances) in connection with the liquidation of any Specially Serviced
Loan or REO Property pursuant to Section 3.09 or Section 3.18 (including,
without limitation, legal fees and expenses, committee or referee fees and, if
applicable, brokerage commissions and conveyance taxes).
"Liquidation Fee": With respect to each Specially Serviced Loan or
REO Property, the fee designated as such and payable to the Special Servicer
pursuant to the third paragraph of Section 3.11(c). Notwithstanding the
foregoing and for the avoidance of doubt, no Liquidation Fee shall be payable in
connection with: (a) the purchase of a Defaulted Serviced Loan by the Majority
Certificateholder of the Controlling Class pursuant to any applicable purchase
right set forth in Section 3.18(c) or (l) or with respect to a purchase of a
related Defaulted Serviced Loan at its fair value as determined in Section 3.18,
unless such purchase is by an assignee of the Majority Certificateholder of the
Controlling Class or the Special Servicer, such assignee is not an affiliate of
the Majority Certificateholder of the Controlling Class or the Special Servicer,
such assignment is for no material consideration, and provided such purchase
occurs or purchase right is exercised more than 90 days from the date that the
Special Servicer has initially determined the fair value of the related mortgage
loan; (b) the purchase of any Mortgage Loan by the Whole Loan Purchase Option
Holder (or its designee) or the holder of a subordinate note or a Mezzanine Loan
(or its designee) pursuant to a purchase option contained in the related
intercreditor agreement, unless such purchase occurs or purchase right is
exercised more than 90 days from the date that the Mortgage Loan has become a
Specially Serviced Loan; (c) the purchase option of the Majority
Certificateholder of the Controlling Class, the Master Servicer or the Special
Servicer pursuant to Section 9.01; (d) the repurchase by the Mortgage Loan
Seller of a Mortgage Loan so required to be repurchased by it pursuant to
Section 4 of the Mortgage Loan Purchase and Sale Agreement and Section 2.03
within the time frame set forth in the Initial Resolution Period and/or the
Resolution Extension Period (if applicable), provided that such time frame shall
never be less than 90 days from the date that the Mortgage Loan Seller was first
notified of its obligation to repurchase pursuant to Section 4 of the Mortgage
Loan Purchase and Sale Agreement and Section 2.03, provided such purchase occurs
within 90 days after the date that the Mortgage Loan Seller was first notified
of its obligation to repurchase such Mortgage Loan; and (e) in connection with a
Loss of Value Payment by the Mortgage Loan Seller.
"Liquidation Fee Rate": With respect to each Specially Serviced Loan
or REO Property as to which a Liquidation Fee is payable, 1.0% (100 basis
points).
"Liquidation Proceeds": All cash amounts (other than Insurance
Proceeds, Condemnation Proceeds and REO Revenues) received by the Master
Servicer or the Special Servicer in connection with: (i) the liquidation of a
Mortgaged Property or other collateral constituting security for a Defaulted
Serviced Loan through trustee's sale, foreclosure sale, REO Disposition or
otherwise, exclusive of any portion thereof required to be released to the
related Mortgagor in accordance with applicable law and/or the terms and
conditions of the related loan documents; (ii) the realization upon any
deficiency judgment obtained against a Mortgagor; (iii) the purchase of a
Defaulted Serviced Loan by any Controlling Class Certificateholder(s) pursuant
to Section 3.18(c), by the Special Servicer pursuant to Section 3.18(c), by a
Whole Loan Purchase Option Holder pursuant to the related Intercreditor
Agreement or by the related Mezzanine Loan Holder pursuant to the related
Mezzanine Intercreditor Agreement; (iv) the repurchase of a Mortgage Loan by the
Mortgage Loan Seller pursuant to the Mortgage Loan Purchase and Sale Agreement;
(v) the substitution of one or more Replacement Mortgage Loans for a Deleted
Mortgage Loan by the Mortgage Loan Seller pursuant to the Mortgage Loan Purchase
and Sale Agreement (such cash amounts being any Substitution Shortfall Amounts);
(vi) the purchase of a Mortgage Loan or REO Property by the Master Servicer, the
Special Servicer or any Controlling Class Certificateholder(s) pursuant to
Section 9.01; or (vii) except for purposes of Section 3.11(c), the transfer of
any Loss of Value Payments from the Loss of Value Reserve Fund to the
Certificate Account.
"Litigation Control": As defined in Section 3.30.
"Loan": Any Mortgage Loan or the One Stamford Forum Note B.
"Loan Group": Together, Loan Group 1 and Loan Group 2.
"Loan Group 1": Collectively, all of the Mortgage Loans that are
Group 1 Mortgage Loans and any successor REO Serviced 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 Serviced 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.
"Lock-Box Agreement": With respect to any Loan, the lock-box
agreement, if any, between the originator and the Borrower, pursuant to which an
account created pursuant to the related loan documents to receive revenues
therefrom, if any, may have been established.
"Lock-Box Account": With respect to any Lock-Box Agreement, the
account(s) established pursuant to the terms of such agreement.
"Loss of Value Payment": As defined in Section 2.03(i).
"Loss of Value Reserve Fund": The "outside reserve fund" (within the
meaning of Treasury Regulations Section 1.860G-2(h)) designated as such pursuant
to Section 2.12. The Loss of Value Reserve Fund will be part of the Trust, but
not part of the Grantor Trust or REMIC I or REMIC II.
"MAI": Member of the Appraisal Institute.
"Majority Certificateholder": With respect to any specified Class or
Classes of Certificates, as of any date of determination, any Holder or
particular group of Holders of Certificates of such Class or Classes, as the
case may be, entitled to a majority of the Voting Rights allocated to such Class
or Classes, as the case may be.
"Master Servicer": Bank of America, National Association, 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 such amounts are
payable to the One Stamford Forum Note B Holder pursuant to the related
Intercreditor Agreement.
"Master Servicer Remittance Date": The Business Day immediately
preceding each Distribution Date.
"Master Servicing Fee": With respect to each Loan and REO Serviced
Loan, the fee payable to the Master Servicer pursuant to Section 3.11(a) and
from which any Primary Servicing Fee is payable.
"Master Servicing Fee Rate": With respect to (a) each Mortgage Loan
and any related REO Serviced Loan, the Administrative Fee Rate specified for
each such Mortgage Loan on the Mortgage Loan Schedule minus the Trustee Fee Rate
and (b) with respect to the One Stamford Forum Note B and any related REO
Serviced Loan, the Master Servicing Fee Rate shall be the same as the Master
Servicing Fee Rate for the related Mortgage Loan.
"Material Breach": A Breach that materially and adversely affects
the interests of the Certificateholders, or any of them, with respect to the
affected Mortgage Loan, including but not limited to a material and adverse
effect on any of the distributions payable with respect to any of the
Certificates or on the value of such Certificates or such Mortgage Loan.
"Material Document Defect": A Document Defect that materially and
adversely affects the interests of the Certificateholders, or any of them, with
respect to the affected Mortgage Loan, including but not limited to a material
and adverse effect on any of the distributions payable with respect to any of
the Certificates or on the value of such Certificates or such Mortgage Loan.
"MERS": Mortgage Electronic Registration Systems, Inc.
"Mezzanine Intercreditor Agreement": With respect to the FBI
Regional HQ Building Mezzanine Loan, the FBI Regional HQ Building 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": The FBI Regional HQ Building 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 FBI Regional HQ
Building Mezzanine Loan, the FBI Regional HQ Building Mezzanine Loan Holder and,
with respect to any Mortgage Loan with permitted future mezzanine indebtedness,
the mezzanine lender under such future mezzanine loan.
"Modified Serviced Loan": Any Serviced Loan as to which any
Servicing Transfer Event has occurred and that has been modified by the Special
Servicer pursuant to Section 3.20 in a manner that:
(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 Serviced 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 Serviced Loan or
reduces the likelihood of timely payment of amounts due thereon.
"Monthly Payment": With respect to any Loan, for any Due Date as of
which such Loan is outstanding, the scheduled monthly payment (or, in the case
of an ARD Loan after its Anticipated Repayment Date, the minimum required
monthly payment, exclusive of any Excess Interest and any excess cash flow) of
principal and/or interest on such Loan, including, without limitation, a Balloon
Payment, that is actually payable by the related Mortgagor from time to time
under the terms of the related Mortgage Note (as such terms may be changed or
modified in connection with a bankruptcy or similar proceeding involving the
related Mortgagor or a modification, waiver or amendment of such Loan granted or
agreed to by the Master Servicer or Special Servicer pursuant to Section 3.20
and applicable law); provided that the Monthly Payment due in respect of any ARD
Loan after its Anticipated Repayment Date shall not include Excess Interest.
"Moody's": Xxxxx'x Investors Service, Inc. or its successor in
interest. If neither Moody's nor any successor remains in existence, "Moody's"
shall be deemed to refer to such other nationally recognized statistical rating
agency or other comparable Person designated by the Depositor, notice of which
designation shall be given to the Trustee, the Master Servicer, the Special
Servicer and the REMIC Administrator, and specific ratings of Moody's herein
referenced shall be deemed to refer to the equivalent ratings of the party so
designated.
"Mortgage": With respect to any Loan, separately and collectively,
as the context may require, each mortgage, deed of trust and/or other similar
document or instrument securing the related Mortgage Note and creating a lien on
the related Mortgaged Property.
"Mortgage File": With respect to any Mortgage Loan, subject to
Sections 1.04 and 2.01, collectively the following documents:
(i) (A) the original executed Mortgage Note, endorsed (either on the
face thereof or pursuant to a separate allonge) "Pay to the order of Xxxxx
Fargo Bank, N.A., as Trustee for the registered holders of Banc of America
Commercial Mortgage Inc., Commercial Mortgage Pass-Through Certificates,
Series 2006-3, without recourse" or in blank, and further showing a
complete, unbroken chain of endorsement from the originator (if such
originator is other than the Mortgage Loan Seller); or alternatively, if
the original executed Mortgage Note has been lost, a lost note affidavit
and indemnity from the Mortgage Loan Seller with a copy of such Mortgage
Note, and (B) in the case of the One Stamford Forum Note B, a copy of the
executed Mortgage Note for the One Stamford Forum Note B;
(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, (A) for
all Mortgage Loans, an original executed assignment of the Mortgage in
favor of Xxxxx Fargo Bank, N.A., as Trustee for the registered holders of
Banc of America Commercial Mortgage Inc., Commercial Mortgage Pass-Through
Certificates, Series 2006-3 or in blank, in recordable form (except for
any missing recording information with respect to such Mortgage) and (B)
in the case of each Whole Loan, an original executed assignment of the
Mortgage also to Xxxxx Fargo Bank, N.A. in its capacity as "lead lender"
on behalf of the holders of the One Stamford Forum Note B, 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 Xxxxx Fargo Bank, N.A., as Trustee for the registered holders of Banc
of America Commercial Mortgage Inc., Commercial Mortgage Pass-Through
Certificates, Series 2006-3 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 Xxxxx Fargo Bank, N.A.
in its capacity as "lead lender" or on behalf of the holders of the One
Stamford Forum Note B, provided that if the related Mortgage has been
recorded in the name of MERS or its designee, no assignment of Assignment
of Leases in favor of the Trustee will be required to be prepared or
delivered and instead, the Master Servicer shall take all actions as are
necessary to cause the Trustee to be shown as, and the Trustee shall take
all actions necessary to confirm that it is shown as, the owner of the
related Mortgage on the records of MERS for purposes of the system of
recording transfers of beneficial ownership of mortgages maintained by
MERS;
(vi) originals or copies of any written assumption, modification,
written assurance and substitution agreements in those instances where the
terms or provisions of the Mortgage or Mortgage Note have been modified or
the Mortgage Loan has been assumed, in each case (unless the particular
item has not been returned from the applicable recording office) with
evidence of recording indicated thereon if the instrument being modified
or assumed is a recordable document;
(vii) the original or a copy of the policy of lender's title
insurance or, if such policy has not yet been issued, a "marked-up" pro
forma title policy or commitment for title insurance marked as binding and
countersigned by the issuer or its authorized agent either on its face or
by an acknowledged closing instruction or escrow letter;
(viii) filed copies of any prior UCC Financing Statements in favor
of the originator of such Mortgage Loan or in favor of any assignee prior
to the Trustee (but only to the extent the Mortgage Loan Seller had
possession of such UCC Financing Statements prior to the Closing Date)
and, in connection with such UCC Financing Statements, an original UCC-2
or UCC-3, as appropriate, in favor of Xxxxx Fargo Bank, N.A., as Trustee
for the registered holders of Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2006-3 or in blank,
in a form that is complete and suitable for filing or recording, and
sufficient to assign to the Trustee the security interest held by the
originator of the Mortgage Loan or its assignee; provided, if the related
Mortgage Loan has been recorded in the name of MERS or its designee, no
UCC Financing Statement in favor of the Trustee will be required to be
prepared or delivered and instead, the Master Servicer shall take all
actions as are necessary to cause the Trustee, on behalf of the
Certificateholders, to be shown as, and the Trustee shall take all actions
necessary to confirm that it is shown as, the owner of the related
Mortgage on the records of MERS for purposes of the system of recording
transfers of beneficial ownership of mortgages maintained by MERS;
(ix) the original or a copy of any environmental indemnity agreement
relating solely to such Mortgage Loan;
(x) the original or a copy of any power of attorney, guaranty, loan
agreement, Ground Lease and/or Ground Lease estoppels relating to such
Mortgage Loan;
(xi) any original documents (including any security agreement(s))
relating to, evidencing or constituting Additional Collateral and, if
applicable, the originals or copies of any intervening assignments
thereof;
(xii) the original or a copy of any Intercreditor Agreement,
co-lender agreement, agreement among noteholders or similar agreement
relating to such Mortgage Loan and a copy of any Letter of Credit;
(xiii) with respect to the One Stamford Forum Note A Mortgage Loan,
a copy of the One Stamford Forum Note B;
(xiv) with respect to hospitality properties, a copy of the
franchise agreement, an original copy of the comfort letter and any
transfer documents with respect to such comfort letter, if any; and
(xv) a list attached to each Mortgage File indicating the documents
to be included in each such Mortgage File (the "Mortgage Loan Checklist")
which list may be modified within 180 days by the 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 Agreement": The Mortgage Loan
Purchase and Sale Agreement dated as of August 1, 2006 between Bank of America
and the Depositor.
"Mortgage Loan Schedule": The list of Mortgage Loans transferred on
the Closing Date to the Trustee as part of the Trust Fund, which list is
attached hereto as Schedule I and may be amended from time to time in accordance
with Section 2.03(f). The Mortgage Loan Schedule shall set forth, among other
things, the following information with respect to each Mortgage Loan:
(i) the loan number, the control number and the trust mortgage loan
identification number;
(ii) the street address or addresses (including city, state and zip
code) of the related Mortgaged Property.
(iii) (a) the Mortgage Rate in effect as of the Cut-off Date and (b)
whether the Mortgage Loan accrues interest on the basis of the actual
number of days elapsed in the relevant month of accrual and a 360-day year
(an "Actual/360 Basis") or on the basis of a 360-day year consisting of
twelve 30-day months (a "30/360 Basis");
(iv) the original principal balance;
(v) the Cut-off Date Balance;
(vi) the (A) remaining term to stated maturity and (B) Stated
Maturity Date;
(vii) the Due Date;
(viii) the amount of the Monthly Payment due on the first Due Date
following the Cut-off Date (other than with respect to Loans that are
interest only for some (but not 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 Seller": Bank of America.
"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 Serviced Loans. The Mortgage Pool does not include the One
Stamford Forum Note B or any related REO Serviced Loan.
"Mortgage Rate": With respect to (i) any Loan on or prior to its
Stated Maturity Date, the annualized rate at which interest is scheduled (in the
absence of a default) to accrue on such Loan from time to time in accordance
with the terms of the related Mortgage Note (as such may be modified at any time
following the Closing Date) and applicable law, (ii) any Loan after its Stated
Maturity Date, the annualized rate described in clause (i) above determined
without regard to the passage of such Stated Maturity Date, and (iii) any REO
Serviced Loan, the annualized rate described in clause (i) or (ii) above, as
applicable, determined as if the related Loan had remained outstanding.
"Mortgaged Property": Individually and collectively, as the context
may require, each real property (together with all improvements and fixtures
thereon) subject to the lien of a Mortgage and constituting collateral for a
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 Application Fee": As defined in Section 3.08.
"Net Assumption Fee": As defined in Section 3.08.
"Net Cash Flow": With respect to any Mortgaged Property, the total
operating revenues derived from such Mortgaged Property, minus the total fixed
and variable operating expenses, capital expenditures such as reserves, tenant
improvements and leasing commissions, incurred in respect of such Mortgaged
Property (subject to adjustments for, among other things, (i) non cash items
such as depreciation and amortization, and (ii) debt service on loans secured by
the Mortgaged Property).
"Net Default Charges": With respect to any Serviced Loan or REO
Serviced Loan, the Default Charges referred to in clause sixth of Section
3.27(a) and clause second of 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 Application Fee": As defined in Section 3.20(i).
"Net Modification Fee": As defined in Section 3.20(i).
"Net Mortgage Rate": With respect to any Loan or any related REO
Serviced Loan, as of any date of determination, a rate per annum equal to the
related Mortgage Rate then in effect minus the related Administrative Fee Rate,
if applicable. For purposes of calculating the Pass-Through Rate for each Class
of Certificates (other than the Class V Certificates and the Residual
Certificates) from time to time, the Net Mortgage Rate for any Mortgage Loan
will be calculated without regard to any modification, waiver or amendment of
the terms of such Mortgage Loan subsequent to the Closing Date.
"Net Operating Income": With respect to any Mortgaged Property, the
total operating revenues derived from such Mortgaged Property for a specified
period, minus the total fixed and variable operating expenses incurred in
respect of such Mortgaged Property (subject to adjustments for, and excluding,
among other things, (i) non-cash items such as depreciation and amortization,
(ii) capital expenditures (inclusive of replacement reserves) and (iii) debt
service on loans secured by the Mortgaged Property).
"New Lease": Any lease of REO Property entered into at the direction
of the Special Servicer on behalf of the Trust (and the One Stamford Forum Note
B Holder, to the extent of its interest), including any lease renewed, modified
or extended on behalf of the Trust, if the Trust has the right to renegotiate
the terms of such lease.
"Non-Investment Grade Sequential Pay Certificates": The Class J,
Class K, Class L, Class M, Class N, Class O and Class P Certificates.
"Non-Partitioned Loans": Each Mortgage Loan, other than the One
Stamford Forum Note A Mortgage Loan.
"Non-Registered Certificate": Unless and until registered under the
Securities Act, any Class XW, Class D, Class E, Class F, Class G, Class H, Class
J, Class K, Class L, Class M, Class N, Class O, Class P, Class 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 Mortgage Loan or any
REO Serviced Loan that, as determined by the Master Servicer, the Special
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 (together with Advance
Interest accrued thereon) from Default Charges, Insurance Proceeds, Condemnation
Proceeds, Liquidation Proceeds or any other recovery on or in respect of such
Mortgage Loan; provided, however, that the Special Servicer may, at its option,
in consultation with the Directing Certificateholder, make a determination in
accordance with the Servicing Standard, that any P&I Advance previously made or
proposed to be made is a Nonrecoverable P&I Advance and shall deliver to the
Master Servicer and the Trustee notice of such determination and any such
determination shall be conclusive and binding on the Master Servicer and the
Trustee.
"Nonrecoverable Servicing Advance": Any Servicing Advance made or
proposed to be made in respect of a Serviced Loan or REO Property that, as
determined by the Master Servicer or, if applicable, the Special Servicer or the
Trustee in 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 Serviced Loan or REO
Property (without giving effect to potential recoveries on deficiency judgments
or recoveries from guarantors); provided, however, that the Special Servicer
may, at its option, make a determination in accordance with the Servicing
Standard and Section 3.11(h), that any Servicing Advance previously made or
proposed to be made is a Nonrecoverable Servicing Advance and shall deliver to
the Master Servicer and the Trustee notice of such determination and any such
determination shall be conclusive and binding on the Master Servicer and the
Trustee.
"Officer's Certificate": A certificate signed by a Servicing Officer
of the Master Servicer, the Special Servicer or any Additional Servicer, a
Responsible Officer of the Trustee or any authorized officer of the Mortgage
Loan Seller, as the case may be.
"One Stamford Forum Control Appraisal Period": The meaning assigned
to "Control Appraisal Period" in the One Stamford Forum Intercreditor Agreement.
"One Stamford Forum Controlling Holder": The meaning assigned to
"Controlling Holder" in the One Stamford Forum Intercreditor Agreement. The
initial One Stamford Forum Controlling Holder shall be set forth on Schedule VII
hereto.
"One Stamford Forum Intercreditor Agreement": The Agreement Among
Note Holders dated as of August 1, 2006 by and between the One Stamford Forum
Note A Holder and the One Stamford Forum Note B Holder relating to the relative
rights of such holders, as the same may be further amended from time to time in
accordance with the terms thereof.
"One Stamford Forum Mortgaged Property": The property that secures
the One Stamford Forum Whole Loan.
"One Stamford Forum Note A": With respect to the One Stamford Forum
Note A Mortgage Loan, the related Mortgage Note that is included in the Trust
Fund.
"One Stamford Forum Note A Holder": The holder of the One Stamford
Forum Note B, initially Bank of America, National Association.
"One Stamford Forum Note A Mortgage Loan": The Mortgage Loan
identified as Loan No. 3401226 in the Mortgage Loan Schedule, which, together
with the One Stamford Forum Note A, is secured by a Mortgage on the One Stamford
Forum Mortgaged Property.
"One Stamford Forum Note B": The Mortgage Note related to the One
Stamford Forum Whole Loan that is not included in the Trust, which is
subordinated in right of payment to the One Stamford Forum Note A to the extent
set forth in the One Stamford Forum Intercreditor Agreement. The amortization of
the One Stamford Forum Note B is set forth in the schedule attached hereto as
Schedule XIII.
"One Stamford Forum Note B Holder": The holder of the One Stamford
Forum Note B, initially Banc of America Structured Notes, Inc.
"One Stamford Forum Noteholders": The holder of the Mortgage Note
for the One Stamford Forum Note A Mortgage Loan and the One Stamford Forum Note
B Holder.
"One Stamford Forum Whole Loan": The One Stamford Forum Note A
Mortgage Loan together with the One Stamford Forum Note B. References herein to
the One Stamford Forum Whole Loan shall be construed to refer to the aggregate
indebtedness under the One Stamford Forum Note A and the One Stamford Forum Note
B.
"Opinion of Counsel": A written opinion of counsel (who must, in
connection with any opinion rendered pursuant hereto with respect to tax matters
or a resignation under Section 6.04, be Independent counsel, but who otherwise
may be salaried counsel for the Depositor, the Trustee, the REMIC Administrator,
the Master Servicer or the Special Servicer), which written opinion is
acceptable and delivered to the addressee(s).
"Option Holder": As defined in Section 3.18(c).
"Option Period": As defined in Section 3.18(c).
"Option Price": As defined in Section 3.18(c).
"OTS": The Office of Thrift Supervision or any successor thereto.
"Ownership Interest": As to any Certificate, any ownership or
security interest in such Certificate as the Holder thereof and any other
interest therein, whether direct or indirect, legal or beneficial, as owner or
as pledgee.
"P&I Advance": As to any Serviced Loan or REO Serviced Loan, any
advance made by the Master Servicer or the Trustee pursuant to Section 4.03.
"Pass-Through Rate": With respect to any Class of Sequential Pay
Certificates, the rate per annum specified as such in respect of such Class of
Certificates in the Preliminary Statement hereto. With respect to the Class XW
Certificates, for any Distribution Date, the Class XW Pass-Through Rate.
"Past Grace Period Serviced Loan": With respect to any Master
Servicer Remittance Date, any Serviced Loan having any Monthly Payment remaining
unpaid past its Due Date and past any applicable grace period for such Monthly
Payment as of the Determination Date on the same calendar month.
"Payment Priority": With respect to any Class of Certificates (other
than the Class V Certificates), the priority of the Holders thereof in respect
of the Holders of the other Classes of Certificates to receive distributions out
of the Available Distribution Amount for any Distribution Date. The Payment
Priority of the respective Classes of Certificates shall be, in descending
order, as follows: first, the respective Classes of Senior Certificates; second,
the Class A-M Certificates; third, the Class A-J Certificates; fourth the Class
B Certificates; fifth, the Class C Certificates; sixth, the Class D
Certificates; seventh, the Class E Certificates; eighth, the Class F
Certificates; ninth, the Class G Certificates; tenth, the Class H Certificates;
eleventh, the Class J Certificates; twelfth, the Class K Certificates;
thirteenth, the Class L Certificates; fourteenth, the Class M Certificates;
fifteenth, the Class N Certificates; sixteenth, the Class O Certificates;
seventeenth, the Class P Certificates; and last, the respective Classes of
Residual Certificates.
"Percentage Interest": With respect to any REMIC II Regular
Certificate, 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.
"Performing Party": As defined in Section 11.12.
"Performing Serviced Loan": As of any date of determination, any
Serviced Loan as to which no Servicing Transfer Event then exists.
"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 debt obligations of
such bank or trust company are rated no less than "F-1+" by Fitch and "A-1+" by
S&P;
(d) commercial paper (having original maturities of not more than
365 days) of any corporation incorporated under the laws of the United States or
any state thereof rated no less than "F-1+" by Fitch and "A-1+" by S&P;
(e) units of money market funds that maintain a constant asset value
and that are rated in the highest applicable rating category by each of Fitch
(or if not rated by Fitch a confirmation from Fitch that such money market fund
is acceptable) and S&P (i.e., "AAAm" or "AAAmG"); and
(f) any other obligation or security that would not result in the
downgrade, qualification (if applicable) or withdrawal of the rating then
assigned by any of the Rating Agencies to any Class of Certificates, evidence of
which shall be confirmed in writing by each Rating Agency to the Trustee;
provided that no investment described hereunder shall evidence either the right
to receive (a) only interest with respect to such investment or (b) a yield to
maturity greater than 120% of the yield to maturity at par of the underlying
obligations; and provided, further, that no investment described hereunder may
be purchased at a price greater than par if such investment may be prepaid or
called at a price less than its purchase price prior to stated maturity; and
provided, further, that each investment described hereunder shall, by its terms,
have a predetermined fixed amount of principal due at maturity (that cannot vary
or change) and either a fixed interest rate or variable interest rate tied to a
single interest rate index plus a single fixed spread; and provided, further,
that each investment described hereunder shall be a "cash flow investment", as
defined in the REMIC Provisions; and provided, further, that no investment
described hereunder shall have a maturity in excess of one year; and provided,
further, that no investment described hereunder shall be liquidated prior to its
maturity date; and provided, further, that no investment described hereunder may
have an "r" highlighter or other comparable qualifier attached to its rating.
"Permitted Transferee": Any Transferee of a Residual Certificate
other than any of a Plan or a Person acting on behalf of or using the assets of
a Plan, a Disqualified Organization, a Disqualified Non-U.S. Person, an entity
treated as a U.S. partnership for federal income tax purposes if any of its
direct or indirect partners (other than through a U.S. corporation) is a
Disqualified Non-U.S. Person or a U.S. Person with respect to whom income on a
Residual Certificate is attributable to a foreign permanent establishment or
fixed base, within the meaning of an applicable income tax treaty, of such
Person or any other U.S. Person or any nominee, agent or middleman of any of the
above.
"Person": Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, limited
liability company or government or any agency or political subdivision thereof.
"Phase I Environmental Assessment": A "Phase I assessment" or, in
the case of any Serviced Loan having an initial principal balance under
$1,000,000, a transaction screen, as described in, and meeting the criteria of,
the American Society of Testing Materials Standard Sections 1527-99 or any
successor thereto published by the American Society of Testing Materials.
"Placement Agent": Banc of America Securities LLC.
"Plan": As defined in Section 5.02(c).
"Pool REO Account": A segregated custodial account or accounts
created and maintained by the Special Servicer pursuant to Section 3.16(b) on
behalf of the Trustee in trust for the Certificateholders, which shall be
entitled "LNR Partners, Inc., as Special Servicer, for the benefit of Xxxxx
Fargo Bank, N.A., as Trustee, in trust for registered Holders of Banc of America
Commercial Mortgage Inc., Commercial Mortgage Pass-Through Certificates, Series
2006-3, REO Account". Any such account or accounts shall be an Eligible Account.
"Post CAP Serviced Whole Loan": The Serviced Whole Loan following
the occurrence and during the continuance of a related Control Appraisal Period.
"Prepayment Assumption": The assumption that no Mortgage Loan (other
than an ARD Loan) is prepaid prior to its Stated Maturity Date and that no ARD
Loan is prepaid prior to, but each is paid in its entirety on, its Anticipated
Repayment Date, such assumption to be used for determining the accrual of
original issue discount, market discount and premium, if any, on the Mortgage
Loans, the REMIC I Regular Interests and the REMIC II Regular Certificates for
federal income tax purposes.
"Prepayment Interest Excess": With respect to any Serviced Loan that
was subject to a Principal Prepayment in full or in part made on or prior to the
Determination Date in any calendar month but after such Serviced Loan's Due
Date, any payment of interest (net of related Master Servicing Fees and Excess
Interest and exclusive of Prepayment Premiums) actually collected from the
related Mortgagor from and after such Due Date.
"Prepayment Interest Shortfall": With respect to any Serviced Loan
that was subject to a Principal Prepayment in full or in part made after the
Determination Date in any calendar month, the amount of uncollected interest
(determined without regard to any Prepayment Premium that may have been
collected and exclusive of, in the case of an ARD Loan after its Anticipated
Repayment Date, Excess Interest) that would have accrued at a per annum rate
equal to the sum of the Net Mortgage Rate for such Serviced Loan plus the
Trustee Fee Rate, on the amount of such Principal Prepayment during the period
commencing on the date as of which such Principal Prepayment was applied to such
Serviced Loan and ending on the last day of such calendar month, inclusive.
"Prepayment Premium": Any premium, penalty or fee paid or payable,
as the context requires, by a Mortgagor in connection with a Principal
Prepayment on, or other early collection of principal of, a Loan or any
successor REO Serviced Loan.
"Primary Collateral": The Mortgaged Property directly securing a
Cross-Collateralized Mortgage Loan excluding, however, any Mortgaged Property as
to which the related lien may only be foreclosed upon solely because of the
cross-collateralization of such Mortgage Loans.
"Primary Servicing Fee": With respect to each Mortgage Loan that is
subject to a Sub-Servicing Agreement as of the Closing Date, the monthly fee
payable to the Sub-Servicer by the Master Servicer from the Master Servicing
Fee, which monthly fee accrues at the Primary Servicing Fee Rate.
"Primary Servicing Fee Rate": With respect to each Mortgage Loan
that is subject to a Sub-Servicing Agreement as of the Closing Date, the rate
per annum specified as such in the Mortgage Loan Schedule.
"Primary Servicing Office": With respect to the Master Servicer, the
office thereof primarily responsible for performing its respective duties under
this Agreement, initially located in Charlotte, North Carolina, and, with
respect to the Special Servicer, the office thereof primarily responsible for
performing its respective duties under this Agreement, initially located in
Florida.
"Principal Distribution Amount": With respect to any Distribution
Date and in respect of any Mortgage Loan, the aggregate of the Current Principal
Distribution Amount for such Distribution Date and, if such Distribution Date is
subsequent to the initial Distribution Date, the excess, if any, of the
Principal Distribution Amount for the preceding Distribution Date, over the
aggregate distributions of principal made on the Sequential Pay Certificates on
the preceding Distribution Date; provided that the Principal Distribution Amount
for any Distribution Date shall be reduced by the amount of any reimbursements
of Nonrecoverable Advances or Workout-Delayed Reimbursement Amounts plus
interest on such Nonrecoverable Advances or Workout-Delayed Reimbursement
Amounts that are paid or reimbursed from principal collections on the Mortgage
Loans in a period during which such principal collections would have otherwise
been included in the Principal Distribution Amount for such Distribution Date
(provided, that if any of the amounts that were reimbursed from principal
collections on the Mortgage Loans are subsequently recovered on the related
Mortgage Loan, such recovery will increase the Principal Distribution Amount for
the Distribution Date related to the period in which such recovery occurs).
"Principal Pay Certificates": Collectively, the Sequential Pay
Certificates.
"Principal Prepayment": Any voluntary payment of principal made by
the Mortgagor on a Loan that is received in advance of its scheduled Due Date
and that is not accompanied by an amount of interest (without regard to any
Prepayment Premium that may have been collected) representing scheduled interest
due on any date or dates in any month or months subsequent to the month of
prepayment.
"Prohibited Actions": As defined in Section 3.21(f).
"Prospectus Supplement": That certain prospectus supplement dated
July 20, 2006, relating to the Class X-0, Xxxxx X-0, Class A-3, Class A-4, Class
A-1A, Class A-M, Class A-J, Class B and Class C Certificates, that is a
supplement to the Base Prospectus.
"Purchase Option": As defined in Section 3.18(c).
"Purchase Price": With respect to any Mortgage Loan, a price equal
to the unpaid principal balance of the Mortgage Loan as of the date of purchase,
together with (a) all accrued and unpaid interest (excluding, in the case of an
ARD Loan after its Anticipated Repayment Date, Excess Interest) on the Mortgage
Loan at the related Mortgage Rate up to but not including the Due Date in the
Collection Period of purchase, (b) all related unreimbursed Master Servicing
Fees, Special Servicing Fees, Trustee Fees and Servicing Advances that are
unreimbursed from related collections on such Mortgage Loan, (c) all accrued and
unpaid Advance Interest in respect of related Advances, (d) any Additional Trust
Fund Expenses in respect of such Mortgage Loan (including any Additional Trust
Fund Expenses previously reimbursed or paid by the Trust Fund but not so
reimbursed by the related Mortgagor or other party or from Insurance Proceeds or
Condemnation Proceeds or otherwise), (e) Liquidation Fees (if any) payable in
connection with a purchase of a Mortgage Loan and (f) any cost, fees and
expenses of enforcement (including attorneys fees) of a repurchase obligation
pursuant to Section 2.03(h). With respect to any REO Property, a price equal to
the unpaid principal balance of the related REO Serviced Loan as of the date of
purchase, together with (a) all accrued and unpaid interest (excluding, in the
case of an ARD Loan after its Anticipated Repayment Date, Excess Interest) on
such REO Serviced Loan at the related Mortgage Rate to but not including the Due
Date in the Collection Period of purchase, (b) all related Servicing Advances
that are unreimbursed from related collections on such REO Property, (c) all
accrued and unpaid Advance Interest in respect of related Advances, (d) any
Additional Trust Fund Expenses in respect of such REO Property (including any
Additional Trust Fund Expenses previously reimbursed or paid by the Trust Fund
but not so reimbursed by the related Mortgagor or other party or from Insurance
Proceeds or Condemnation Proceeds or otherwise), (e) Liquidation Fees (if any)
payable in connection with a purchase of a Mortgage Loan and (f) any cost, fees
and expenses of enforcement (including attorneys fees) of a repurchase
obligation pursuant to Section 2.03. The Purchase Price of any Mortgage Loan or
REO Property is intended to include, without limitation, principal and interest
previously advanced with respect thereto and not previously reimbursed.
"Qualified Appraiser": In connection with the appraisal of any Loan,
Mortgaged Property or REO Property, an Independent MAI-designated appraiser with
at least five years of experience in respect of the relevant geographic location
and property type.
"Qualified Bidder": As defined in Section 7.01(d).
"Qualified Institutional Buyer": As defined in Section 5.02(b).
"Qualified Insurer": An insurance company or security or bonding
company qualified to write the related Insurance Policy in the relevant
jurisdiction.
"Qualifying Substitute Mortgage Loan": In connection with the
replacement of a Defective Mortgage Loan as contemplated by Section 2.03, any
other mortgage loan that, on the date of substitution, (i) has a principal
balance, after deduction of the principal portion of any unpaid Monthly Payment
due on or before the date of substitution, not in excess of the Stated Principal
Balance of the Defective Mortgage Loan; (ii) is accruing interest at a fixed
rate of interest at least equal to that of the Defective Mortgage Loan; (iii)
has the same Due Date as, and a grace period for delinquent Monthly Payments
that is no longer than, the Due Date and grace period, respectively, of the
Defective Mortgage Loan; (iv) is accruing interest on the same basis as the
Defective Mortgage Loan (for example, on the basis of a 360-day year consisting
of twelve 30-day months); (v) has a remaining term to stated maturity not
greater than, and not more than two years less than, that of the Defective
Mortgage Loan and, in any event, has a maturity date not later than two years
prior to the Rated Final Distribution Date; (vi) has a then current
loan-to-value ratio not higher than, and a then current debt service coverage
ratio not lower than, the loan-to-value ratio and debt service coverage ratio,
respectively, of the Defective Mortgage Loan as of the Closing Date; (vii) has
comparable prepayment restrictions to those of the Defective Mortgage Loan,
(viii) will comply (except in a manner that would not be adverse to the
interests of the Certificateholders (as a collective whole) in or with respect
to such mortgage loan), as of the date of substitution, with all of the
representations relating to the Defective Mortgage Loan set forth in or made
pursuant to the Mortgage Loan Purchase and Sale Agreement; (ix) has a Phase I
Environmental Assessment and a property condition report relating to the related
Mortgaged Property in its Servicing File, which Phase I Environmental Assessment
will evidence that there is no material adverse environmental condition or
circumstance at the related Mortgaged Property for which further remedial action
may be required under applicable law, and which property condition report will
evidence that the related Mortgaged Property is in good condition with no
material damage or deferred maintenance; and (x) constitutes a "qualified
replacement mortgage" within the meaning of Section 860G(a)(4) of the Code;
provided, however, that if more than one mortgage loan is to be substituted for
any Defective Mortgage Loan, then all such proposed Replacement Mortgage Loans
shall, in the aggregate, satisfy the requirement specified in clause (i) of this
definition and each such proposed Replacement Mortgage Loan shall, individually,
satisfy each of the requirements specified in clauses (ii) through (x) of this
definition; and provided, further, that no mortgage loan shall be substituted
for a Defective Mortgage Loan unless (x) such prospective Replacement Mortgage
Loan shall be acceptable to the Directing Certificateholder (or, if there is no
Directing Certificateholder then serving, to the Holders of Certificates
representing a majority of the Voting Rights allocated to the Controlling
Class), in its (or their) sole discretion, and (y) each Rating Agency shall have
confirmed in writing to the Trustee that such substitution will not in and of
itself result in an Adverse Rating Event with respect to any Class of Rated
Certificates (such written confirmation to be obtained by, and at the expense
of, the Mortgage Loan Seller effecting such substitution).
"Rated Certificate": Any of the Certificates to which a rating has
been assigned by either Rating Agency at the request of the Depositor.
"Rated Final Distribution Date": As to each Class of Certificates,
the Distribution Date in July 2044.
"Rating Agency": Each of Fitch and S&P.
"Realized Loss": With respect to each Defaulted Serviced Loan as to
which a Final Recovery Determination has been made, or with respect to any
related REO Serviced Loan as to which a Final Recovery Determination has been
made as to the related REO Property, an amount (not less than zero) equal to (i)
the unpaid principal balance of such Serviced Loan or REO Serviced Loan, as the
case may be, as of the Due Date related to the Collection Period in which the
Final Recovery Determination was made, plus (ii) all accrued but unpaid interest
on such Serviced Loan or REO Serviced Loan, as the case may be, at the related
Mortgage Rate to but not including the Due Date related to the Collection Period
in which the Final Recovery Determination was made, plus (iii) any related
unreimbursed Servicing Advances as of the commencement of the Collection Period
in which the Final Recovery Determination was made, together with any new
related Servicing Advances made during such Collection Period, minus (iv) all
payments and proceeds, if any, received in respect of such Collection Period
related to the Serviced Loan or REO Serviced Loan, as the case may be, during
the Collection Period in which such Final Recovery Determination was made (net
of any related Liquidation Expenses paid therefrom).
With respect to any Serviced Loan as to which any portion of the
outstanding principal or accrued interest owed thereunder was forgiven in
connection with a bankruptcy or similar proceeding involving the related
Mortgagor or a modification, waiver or amendment of such Serviced Loan granted
or agreed to by the Master Servicer or Special Servicer pursuant to Section
3.20, the amount of such principal or past due interest (other than any Default
Interest) so forgiven.
With respect to any Serviced Loan as to which the Mortgage Rate
thereon has been permanently reduced and not recaptured for any period in
connection with a bankruptcy or similar proceeding involving the related
Mortgagor or a modification, waiver or amendment of such Serviced Loan granted
or agreed to by the Master Servicer or Special Servicer pursuant to Section
3.20, the amount of the consequent reduction, if any, in the interest portion of
each successive Monthly Payment due thereon. Each such Realized Loss shall be
deemed to have been incurred on the Due Date for each affected Monthly Payment.
With respect to the Serviced Whole Loan, Realized Losses shall be
deemed allocated first to the One Stamford Forum Note B, if any, and then to the
One Stamford Forum Note A.
"Record Date": With respect to each Class of Certificates, for any
Distribution Date, the last Business Day of the calendar month immediately
preceding the month in which such Distribution Date occurs.
"Registered Certificates": Any Certificate that has been registered
under the Securities Act.
"Regulation AB": Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended from
time to time, and subject to such clarification and interpretation as have been
provided by the Commission in the adopting release (Asset-Backed Securities,
Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506 - 1,531 (Jan. 7, 2005))
or as may be provided by the Commission or its staff from time to time.
"Regulation S": Regulation S under the Securities Act.
"Regulation S Certificate": A certificate in the form of Exhibit N
attached hereto.
"Regulation S Global Certificate": A global certificate representing
interests in a Class of Certificates as provided in Section 5.03(g), initially
sold in offshore transactions in reliance on Regulation S in fully registered
form without interest coupons.
"Reimbursement Rate": The rate per annum applicable to the accrual
of Advance Interest, which rate per annum shall be equal to the "prime rate" as
published in the "Money Rates" section of The Wall Street Journal, as such
"prime rate" may change from time to time. If The Wall Street Journal ceases to
publish such "prime rate", then the Trustee, in its sole discretion, shall
select an equivalent publication that publishes such "prime rate"; and if such
"prime rate" is no longer generally published or is limited, regulated or
administered by a governmental or quasi governmental body, then the Trustee
shall select a comparable interest rate index. In either case, such selection
shall be made by the Trustee in its sole discretion and the Trustee shall notify
the Master Servicer and the Special Servicer in writing of its selection.
"Release Date": The 40th day after the later of (i) the commencement
of the offering of the Certificates and (ii) the Closing Date.
"Relevant Servicing Criteria": The Servicing Criteria applicable to
the various parties, as set forth on Schedule VIII attached hereto. For the
avoidance of doubt, multiple parties can have responsibility for the same
Relevant Servicing Criteria. With respect to a Servicing Function Participant
engaged by the Trustee, the Master Servicer or the Special Servicer, the term
"Relevant Servicing Criteria" may refer to a portion of the Relevant Servicing
Criteria applicable to the Master Servicer, the Special Servicer or the Trustee.
"REMIC": A "real estate mortgage investment conduit" as defined in
Section 860D of the Code.
"REMIC Administrator": Xxxxx Fargo Bank, N.A., its successor in
interest, or any successor REMIC administrator appointed as herein provided.
"REMIC I": A segregated pool of assets subject hereto and to be
administered hereunder, with respect to which a REMIC election is to be made,
consisting of: (i) the Mortgage Loans (other than Excess Interest) as from time
to time are subject to this Agreement and all payments under and proceeds of
such Mortgage Loans received or receivable after the Cut-off Date (other than
payments of principal, interest and other amounts due and payable on such
Mortgage Loans on or before the Cut-off Date), together with all documents,
Escrow Payments and Reserve Funds delivered or caused to be delivered hereunder
by the Mortgage Loan Seller with respect to such Mortgage Loans, (ii) any REO
Property acquired in respect of a Mortgage Loan and all payments and proceeds of
such REO Property; (iii) the rights of the Depositor under Sections 1, 2, 3, 4,
11, 12, 13, 14, 15, 16, 17, 18, 19, 20 and 21 of the Mortgage Loan Purchase and
Sale Agreement, and (iv) such amounts on or with respect to clauses (i) or (ii),
as from time to time are deposited into the Distribution Account, the
Certificate Account, the Interest Reserve Account and the REO Account (if
established) and the Excess Liquidation Proceeds Account (if established), and
in the case of the Serviced Whole Loan, to the extent of the Trust's interest in
each of the foregoing.
"REMIC I Distribution Account": The segregated account or accounts
created and maintained as a separate trust account or accounts by the Trustee
pursuant to Section 3.04, which shall be entitled "Xxxxx Fargo Bank, N.A., as
Trustee, in trust for Holders of Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2006-3, REMIC I
Distribution Account" and which account shall be an Eligible Account and a
sub-account of the Distribution Account.
"REMIC I Principal Balance": The principal amount of any REMIC I
Regular Interest outstanding as of any date of determination. As of the Closing
Date, the REMIC I Principal Balance of each REMIC I Regular Interest shall equal
the initial REMIC I Principal Balance as set forth in the Preliminary Statement
hereto. On each Distribution Date, the REMIC I Principal Balance of each REMIC I
Regular Interest shall be permanently reduced by all distributions of principal
deemed to have been made in respect of such REMIC I Regular Interest on such
Distribution Date pursuant to Section 4.01(a), and shall be further permanently
reduced on such Distribution Date by all Realized Losses and Additional Trust
Fund Expenses deemed to have been allocated thereto on such Distribution Date
pursuant to Section 4.04(b).
"REMIC I Regular Interest": Any of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and designated as a
"regular interest" in REMIC I, as described in the Preliminary Statement hereto.
"REMIC I Remittance Rate": With respect to any REMIC I Regular
Interest for any Distribution Date, the Weighted Average Adjusted Net Mortgage
Rate.
"REMIC II": A segregated pool of assets subject hereto and to be
administered hereunder, and consisting of all of the REMIC I Regular Interests
and amounts distributed thereon as from time to time are held in the REMIC II
Distribution Account.
"REMIC II Certificate": Any Certificate, other than a Class R-I
Certificate or Class V Certificate.
"REMIC II Distribution Account": The segregated account or accounts
created and maintained as a separate trust account or accounts by the Trustee
pursuant to Section 3.04, which shall be entitled "Xxxxx Fargo Bank, N.A., as
Trustee, in trust for Holders of Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2006-3, REMIC II
Distribution Account" and which account shall be an Eligible Account and a
sub-account of the Distribution Account.
"REMIC II Regular Certificate": Any REMIC II Certificate, other than
a Class R-II Certificate.
"REMIC Provisions": Provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Sections
860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and temporary and final Treasury regulations (or proposed
regulations that would apply by reason of their proposed effective date to the
extent not inconsistent with temporary or final regulations) and any rulings
promulgated thereunder, as the foregoing may be in effect from time to time.
"Rents from Real Property": With respect to any REO Property, gross
income of the character described in Section 856(d) of the Code, which income,
subject to the terms and conditions of that Section of the Code in its present
form, does not include:
(a) except as provided in Section 856(d)(4) or (6) of the Code, any
amount received or accrued, directly or indirectly, with respect to such REO
Property, if the determination of such amount depends in whole or in part on the
income or profits derived by any Person from such property (unless such amount
is a fixed percentage or percentages of receipts or sales and otherwise
constitutes Rents from Real Property);
(b) any amount received or accrued, directly or indirectly, from any
Person if the Trust Fund owns directly or indirectly (including by attribution)
a ten percent or greater interest in such Person determined in accordance with
Sections 856(d)(2)(B) and (d)(5) of the Code;
(c) any amount received or accrued, directly or indirectly, with
respect to such REO Property if any Person Directly Operates such REO Property;
(d) any amount charged for services that are not customarily
furnished in connection with the rental of property to tenants in buildings of a
similar class in the same geographic market as such REO Property within the
meaning of Treasury Regulations Section 1.856-4(b)(1) (whether or not such
charges are separately stated); and
(e) rent attributable to personal property unless such personal
property is leased under, or in connection with, the lease of such REO Property
and, for any taxable year of the Trust Fund, such rent is no greater than 15
percent of the total rent received or accrued under, or in connection with, the
lease.
"REO Account": The Pool REO Account and/or the Serviced Whole Loan
REO Account, as applicable.
"REO Acquisition": The acquisition of an REO Property for federal
income tax purposes pursuant to Treasury Regulations Section 1.856-6.
"REO Disposition": The sale or other disposition of the REO Property
pursuant to Section 3.18.
"REO Extension": As defined in Section 3.16(a).
"REO Property": A Mortgaged Property acquired by the Special
Servicer on behalf of the Trustee for the benefit of the Certificateholders
(and, in the case of a related Mortgaged Property securing the Serviced Whole
Loan, for the benefit of the Certificateholders and the One Stamford Forum Note
B Holder, as their interests may appear) pursuant to Section 3.09 through
foreclosure, acceptance of a deed-in-lieu of foreclosure or otherwise in
accordance with applicable law in connection with the default or imminent
default of a Loan. For the avoidance of doubt, REO Property allocable to the One
Stamford Forum Note B shall not be an asset of the Trust Fund or REMIC I or
REMIC II.
"REO Revenues": All income, rents, profits and proceeds derived from
the ownership, operation or leasing of any REO Property.
"REO Serviced Loan": The mortgage loan deemed for purposes hereof to
be outstanding with respect to each REO Property acquired in respect of any
Serviced Loan. Each REO Serviced Loan shall be deemed to have an initial unpaid
principal balance and Stated Principal Balance equal to the unpaid principal
balance and Stated Principal Balance, respectively, of the predecessor Loan as
of the date of the related REO Acquisition. In addition, all Monthly Payments
(other than any Balloon Payment), Assumed Monthly Payments (in the case of a
Balloon Loan delinquent in respect of its Balloon Payment) and other amounts due
and owing, or deemed to be due and owing, in respect of the predecessor Serviced
Loan as of the date of the related REO Acquisition, shall be deemed to continue
to be due and owing in respect of an REO Serviced Loan. In addition,
Nonrecoverable Advances (including interest on such Nonrecoverable Advances) and
Workout-Delayed Reimbursement Amounts with respect to such REO Serviced Loan
that were reimbursed from collections on the Serviced Loans and resulted in
principal distributed to the Certificateholders being reduced as a result of the
first proviso of the definition of "Principal Distribution Amount", shall be
deemed outstanding until recovered or until a Final Recovery Determination is
made. All amounts payable or reimbursable to the Master Servicer, the Special
Servicer and/or the Trustee in respect of the related Serviced Loan as of the
date of the related REO Acquisition, including, without limitation, any unpaid
Servicing Fees and any unreimbursed Advances, together with any Advance Interest
accrued and payable to the Master Servicer, the Special Servicer and/or the
Trustee in respect of such Advances, shall continue to be payable or
reimbursable to the Master Servicer, the Special Servicer and/or the Trustee as
the case may be, in respect of an REO Serviced Loan. If the One Stamford Forum
Whole Loan becomes an REO Serviced Loan, amounts received by the Trust with
respect to such REO Serviced Loan shall be applied to amounts due and owing in
respect of such REO Serviced Loan as provided in Section 4 of the One Stamford
Forum Intercreditor Agreement. Collections in respect of each REO Serviced Loan
(exclusive of the amounts to be applied to the payment of, or to be reimbursed
to the Master Servicer or the Special Servicer for the payment of, Servicing
Fees, Special Servicing Fees, Additional Master Servicing Compensation,
Additional Special Servicing Compensation, Liquidation Fees, the costs of
operating, managing, selling, leasing and maintaining the related REO Property)
shall be treated: first, as a recovery of Nonrecoverable Advances (including
interest on such Nonrecoverable Advance) and Workout-Delayed Reimbursed Amounts
with respect to such REO Serviced Loan, that were reimbursed from collections on
the Serviced Loans and resulted in principal distributed to the
Certificateholders being reduced as a result of the first proviso of the
definition of "Principal Distribution Amount"; second, as a recovery of accrued
and unpaid interest on such REO Serviced Loan at the related Mortgage Rate in
effect from time to time to but not including the Due Date in the Collection
Period of receipt; third, as a recovery of principal of such REO Serviced Loan
to the extent of its entire unpaid principal balance; fourth, in accordance with
the Servicing Standard of the Master Servicer or the Special Servicer, as
applicable, as a recovery of any other amounts due and owing in respect of such
REO Serviced Loan; fifth, as a recovery of any other amounts deemed to be due
and owing in respect of the related REO Serviced Loan (other than, in the case
of an REO Serviced Loan that relates to an ARD Loan after its Anticipated
Repayment Date, accrued and unpaid Excess Interest); and sixth, in the case of
an REO Serviced Loan that relates to an ARD Loan after its Anticipated Repayment
Date, as a recovery of any accrued and unpaid Excess Interest on such REO
Serviced Loan to but not including the date of receipt by or on behalf of the
Trust, in that order.
"Replacement Mortgage Loan" Any mortgage loan that is substituted by
the Mortgage Loan Seller for a Defective Mortgage Loan as contemplated by
Section 2.03.
"Reportable Event": As defined in Section 11.07.
"Reporting Servicer": As defined in Section 11.10.
"Request for Release": A request for release signed by a Servicing
Officer of, as applicable, the Master Servicer or Special Servicer in the form
of Exhibit D attached hereto.
"Request for Review": A request for review signed by a Servicing
Officer of, as applicable, the Master Servicer or Special Servicer in the form
of Exhibit H attached hereto.
"Required Appraisal Serviced Loan": As defined in Section 3.19(b).
"Required Claims-Paying Ratings": With respect to any insurance
carrier, claims-paying ability ratings at least equal to the following minimum
ratings assigned to such carrier by at least one of the other following parties
and, in any event, by each Rating Agency that assigned a rating to the
claims-paying ability of such insurance carrier: Fitch ("A" or better), S&P ("A"
or better) and A.M. Best ("A: VIII" or better) or any insurance carrier backed
or guaranteed by an insurer with such required ratings; provided, however, that
a rating by A.M. Best shall be disregarded and shall not be applicable as one of
the two required ratings except with respect to a fidelity bond or errors and
omissions insurance maintained by a Sub-Servicer and then only to the extent in
force as of the Closing Date. Notwithstanding the preceding sentence, an
insurance carrier with lower or fewer claims-paying ability ratings shall be
deemed to have the "Required Claims-Paying Ratings" if the applicable Rating
Agency has confirmed in writing that such insurance carrier shall not result, in
and of itself, in a downgrading, withdrawal or qualification (if applicable) of
the then current rating assigned by such Rating Agency to any Class of
Certificates unless, with respect to policies maintained by borrowers, a higher
claims-paying ability rating is required under any of the loan documents.
"Reserve Account": The account or accounts created and maintained
pursuant to Section 3.03(d).
"Reserve Funds": With respect to any Loan, any amounts delivered by
the related Mortgagor (and not previously disbursed) to be held in escrow by or
on behalf of the mortgagee representing reserves for principal and interest
payments, repairs, replacements, capital improvements (including, without
limitation, tenant improvements and leasing commissions), and/or environmental
testing and remediation with respect to the related Mortgaged Property.
"Residual Certificate": Any Class R-I or Class R-II Certificate.
"Resolution Extension Period": This term shall mean:
(i) for purposes of remediating a Material Breach with respect to
any Mortgage Loan, the 90-day period following the end of the applicable
Initial Resolution Period;
(ii) for purposes of remediating a Material Document Defect with
respect to any Mortgage Loan that is not a Specially Serviced Loan at the
commencement of, and does not become a Specially Serviced Loan during, the
applicable Initial Resolution Period, the period commencing at the end of
the applicable Initial Resolution Period and ending on, and including, the
earlier of (i) the 90th day following the end of such Initial Resolution
Period and (ii) the 45th day following receipt by the Mortgage Loan Seller
of written notice from the Master Servicer or the Special Servicer of the
occurrence of any Servicing Transfer Event with respect to such Mortgage
Loan subsequent to the end of such Initial Resolution Period;
(iii) for purposes of remediating a Material Document Defect with
respect to any Mortgage Loan that is a not a Specially Serviced Loan as of
the commencement of the applicable Initial Resolution Period, but as to
which a Servicing Transfer Event occurs during such Initial Resolution
Period, the period commencing at the end of the applicable Initial
Resolution Period and ending on, and including, the 90th day following
receipt by the Mortgage Loan Seller of written notice from the Master
Servicer or the Special Servicer of the occurrence of such Servicing
Transfer Event; and
(iv) for purposes of remediating a Material Document Defect with
respect to any Mortgage Loan that is a Specially Serviced Loan as of the
commencement of the applicable Initial Resolution Period, zero days;
provided, however, that if the Mortgage Loan Seller did not receive
written notice from the Master Servicer or the Special Servicer of the
relevant Servicing Transfer Event as of the commencement of the applicable
Initial Resolution Period, then such Servicing Transfer Event shall be
deemed to have occurred during such Initial Resolution Period and the
immediately preceding clause (iii) of this definition will be deemed to
apply.
In addition, the Mortgage Loan Seller shall have an additional 90
days to cure such Material Document Defect or Material Beach, provided that the
Mortgage Loan Seller has commenced and is diligently proceeding with the cure of
such Material Document Defect or Material Breach and such failure to cure is
solely the result of a delay in the return of documents from the local filing or
recording authorities.
"Responsible Officer": When used with respect to the Trustee, any
officer assigned to the Global Securities and Trust Services Group, any vice
president, any assistant vice president, any assistant secretary, any assistant
treasurer, or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers to whom a
particular matter is referred by the Trustee because of such officer's knowledge
of and familiarity with the particular subject. When used with respect to any
Certificate Registrar (other than the Trustee), any officer or assistant officer
thereof.
"Restricted Period": The 40-day period prescribed by Regulation S
commencing on the later of (a) the date upon which the Certificates are first
offered to persons other than the managers and any other distributor (as defined
in Regulation S) of the Certificates, and (b) the Closing Date.
"Rule 144A": Rule 144A under the Securities Act.
"S&P": Standard & Poor's Ratings Services, a division of The McGraw
Hill Companies, Inc., or its successor in interest. If neither S&P nor any
successor remains in existence, "S&P" shall be deemed to refer to such other
nationally recognized statistical rating agency or other comparable Person
designated by the Depositor, notice of which designation shall be given to the
Trustee, the Master Servicer, the Special Servicer and the REMIC Administrator
and specific ratings of Standard & Poor's Ratings Services, a division of The
McGraw Hill Companies, Inc. herein referenced shall be deemed to refer to the
equivalent ratings of the party so designated.
"Xxxxxxxx-Xxxxx Act": The Xxxxxxxx-Xxxxx Act of 2002 and the rules
and regulations of the Commission promulgated thereunder (including any
interpretations thereof by the Commission's staff).
"Xxxxxxxx-Xxxxx Certification": As defined in Section 11.05(iv).
"Securities Act": The Securities Act of 1933, as amended, and the
rules and regulations thereunder.
"Security Agreement": With respect to any Loan, any security
agreement, chattel mortgage or similar document or instrument, whether contained
in the related Mortgage or executed separately, creating in favor of the holder
of such Mortgage a security interest in the personal property constituting
security for repayment of such Loan.
"Senior Certificate": Any Class A-1, Class A-2, Class A-3, Class
A-4, Class A-1A or Class XW Certificate.
"Senior Principal Distribution Cross-Over Date": The first
Distribution Date as of which the aggregate Class Principal Balance of the Class
A-1, Class A-2, Class A-3, Class A-4 and Class A-1A Certificates outstanding
immediately prior to such Distribution Date exceeds the sum of (a) the aggregate
Stated Principal Balance of the Mortgage Pool that will be outstanding
immediately following such Distribution Date, plus (b) the lesser of (i) the
Principal Distribution Amount for such Distribution Date and (ii) the portion of
the Available Distribution Amount for such Distribution Date that will remain
after the distributions of interest to be made on the Class X-0, Xxxxx X-0,
Class A-3, Class A-4 and Class A-1A Certificates on such Distribution Date have
been so made.
"Sequential Pay Certificate": Any Class A, Class B, Class C, Class
D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class
N, Class O or Class P Certificate.
"Serviced Loan": Any Mortgage Loan or Serviced Whole Loan.
"Serviced Whole Loan": The One Stamford Forum Whole Loan.
"Serviced Whole Loan Custodial Account": With respect to the
Serviced Whole Loan, the segregated account or accounts created and maintained
by the Master Servicer pursuant to Section 3.04(e) on behalf of the One Stamford
Forum Noteholders, which shall be entitled "Bank of America, National
Association, as Master Servicer in trust for One Stamford Forum Whole Loan
Noteholders, as their interests may appear". Any such account shall at all times
be an Eligible Account.
"Serviced Whole Loan Remittance Amount": With respect to any Master
Servicer Remittance Date and the Serviced Whole Loan, an amount equal to (a) all
amounts on deposit in the Serviced Whole Loan Custodial Account as of the
commencement of business on such Master Servicer Remittance Date, net of (b) any
portion of the amounts described in clause (a) of this definition that
represents one or more of the following: (i) collected Monthly Payments that are
due on a Due Date following the end of the related Collection Period, (ii) any
unscheduled payments of principal (including, without limitation, Principal
Prepayments, 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 Serviced Whole Loan Custodial
Account pursuant to any of clauses (ii) through (xvii) of Section 3.05(f), (v)
any Excess Liquidation Proceeds that are unrelated to the Serviced Whole Loan,
and (vi) any amounts deposited into the Serviced Whole Loan Custodial Account in
error, provided that, with respect to the Master Servicer Remittance Date that
occurs in the same calendar month as the Final Distribution Date, the Serviced
Whole Loan Remittance Amount will be calculated without regard to clauses
(b)(i), (b)(ii) and (b)(iii) of this definition.
"Serviced Whole Loan REO Account": As defined in Section 3.16(b).
"Servicer Reports": Each of the (i) CMSA Delinquent Loan Status
Report, (ii) CMSA REO Status Report, (iii) CMSA Historical Loan Modification and
Corrected Mortgage Loan Report, (iv) CMSA Comparative Financial Status Report,
(v) CMSA Servicer Watch List Report, (vi) CMSA NOI Adjustment Worksheet, (vii)
CMSA Operating Statement Analysis Report, (viii) CMSA Loan Level Reserve-LOC
Report, (ix) CMSA Loan Periodic Update File, (x) CMSA Property File, (xi) CMSA
Financial File and (xii) CMSA Advance Recovery Report.
"Service(s)(ing)": In accordance with Regulation AB, the act of
servicing and administering the Mortgage Loans or any other assets of the Trust
by an entity that meets the definition of "servicer" set forth in Item 1101 of
Regulation AB and is referenced in the disclosure requirements set forth in Item
1108 of Regulation AB. For the avoidance of doubt, any uncapitalized occurrence
of this term shall have the meaning commonly understood by participants in the
commercial mortgage-backed securities market.
"Servicing Account": The account or accounts created and maintained
pursuant to Section 3.03(a).
"Servicing Advances": Subject to Section 3.19(d) and with respect to
any Serviced Loan, all customary, reasonable and necessary "out-of-pocket" costs
and expenses incurred or to be incurred, as the context requires, by the Master
Servicer or, with respect to the Specially Serviced Loans, by the Master
Servicer at the direction of the Special Servicer or by the Special Servicer
(or, if applicable, the Trustee) in connection with the servicing of a Serviced
Loan after a default, delinquency or other unanticipated event, or in connection
with the administration of any REO Property, including, but not limited to, the
cost of (a) compliance with the obligations of the Master Servicer set forth in
Sections 3.03(c) and 3.09, (b) the preservation, insurance, restoration,
protection and management of a Mortgaged Property, (c) obtaining any Liquidation
Proceeds or Insurance Proceeds in respect of any Serviced Loan or REO Property,
(d) any enforcement or judicial proceedings with respect to a Mortgaged
Property, including, without limitation, foreclosures, and (e) the operation,
management, maintenance and liquidation of any REO Property; provided that
notwithstanding anything herein to the contrary, "Servicing Advances" shall not
include allocable overhead of the Master Servicer or the Special Servicer (or
the Trustee, if applicable), such as costs for office space, office equipment,
supplies and related expenses, employee salaries and related expenses and
similar internal costs and expenses, or costs incurred by either such party in
connection with its purchase of any Serviced Loan or REO Property pursuant to
any provision of this Agreement. All Emergency Advances made by the Master
Servicer at the direction of the Special Servicer hereunder shall be considered
"Servicing Advances" for the purposes hereof.
"Servicing Criteria": The criteria set forth in paragraph (d) of
Item 1122 of Regulation AB as such may be amended from time to time.
"Servicing Fees": With respect to each Serviced Loan and REO
Serviced Loan, the Master Servicing Fee and the Special Servicing Fee.
"Servicing File": Any documents (other than documents required to be
part of the related Mortgage File), including, without limitation, the related
Phase I Environmental Site Assessment and any related environmental insurance or
endorsement, in the possession of the Master Servicer or the Special Servicer
and relating to the origination and servicing of any Mortgage Loan or the
administration of any REO Property.
"Servicing Function Participant": Any Additional Servicer,
Sub-Servicer, Subcontractor or any other Person, other than the Master Servicer,
the Special Servicer and the Trustee, that is performing activities that address
the Servicing Criteria, unless such Person's activities relate only to 5% or
less of the Mortgage Loans (by Stated Principal Balance).
"Servicing Officer": Any officer or authorized signatory of the
Master Servicer or the Special Servicer or any Additional Servicer involved in,
or responsible for, the administration and servicing of Loans, whose name and
specimen signature appear on a list of such officers and authorized signatories
furnished by such party to the Trustee and the Depositor on the Closing Date, as
such list may be amended from time to time thereafter.
"Servicing Released Bid": As defined in Section 7.01(d).
"Servicing Retained Bid": As defined in Section 7.01(d).
"Servicing Return Date": With respect to any Corrected Serviced
Loan, the date that servicing thereof is returned by the Special Servicer to the
Master Servicer pursuant to Section 3.21(a).
"Servicing Standard": With respect to each of the Master Servicer
and the Special Servicer subject to applicable law and the express terms of the
relevant Loans and in the case of the Serviced Whole Loan, the related
Intercreditor Agreement, to service and administer the Serviced Loans and any
REO Properties for which such Person is responsible hereunder: (a) with the same
care, skill, prudence and diligence as is normal and usual in its general
mortgage servicing and REO property management activities on behalf of third
parties or on behalf of itself, whichever is higher, with respect to mortgage
loans and REO properties that are comparable to those for which it is
responsible hereunder; (b) with a view to the timely collection of all scheduled
payments of principal and interest under the Serviced Loans, the full collection
of all Prepayment Premiums that may become payable under the Serviced Loans and,
in the case of the Special Servicer, if a Serviced Loan comes into and continues
in default and if, in the good faith and reasonable judgment of the Special
Servicer, no satisfactory arrangements can be made for the collection of the
delinquent payments (including payments of Prepayment Premiums), the
maximization of the recovery on such Serviced Loan to the Certificateholders,
and, in the case of the Serviced Whole Loan, on behalf of the One Stamford Forum
Note B Holder, on a net present value basis; and (c) without regard to: (i) any
known relationship that the Master Servicer (or any Affiliate thereof) or the
Special Servicer (or any Affiliate thereof), as the case may be, may have with
the related Mortgagor or with any other party to this Agreement; (ii) the
ownership of any Certificate or One Stamford Forum Note B or any interest in any
mezzanine loan by the Master Servicer (or any Affiliate thereof) or the Special
Servicer (or any Affiliate thereof), as the case may be; (iii) the obligation of
the Master Servicer to make Advances, (iv) the obligation of the Special
Servicer to make, or direct the Master Servicer to make, Servicing Advances; (v)
the right of the Master Servicer (or any Affiliate thereof) or the Special
Servicer (or any Affiliate thereof), as the case may be, to receive
reimbursement of costs, or the sufficiency of any compensation payable to it,
hereunder or with respect to any particular transaction; or (vi) any ownership,
servicing and/or management by the Master Servicer (or any Affiliate thereof) or
the Special Servicer (or any Affiliate thereof), as the case may be, of any
other mortgage loans or real property.
"Servicing Transfer Event" shall mean, with respect to any Serviced
Loan, any of the following events:
(a) the related Serviced Loan becoming a Defaulted Serviced Loan; or
(b) the Master Servicer (or the Special Servicer with the consent of
the Directing Certificateholder) has determined, in its reasonable, good faith
judgment, that a default in the making of a Monthly Payment (including a Balloon
Payment) or any other material payment required under the related loan documents
is likely to occur within 30 days and either (i) the related Mortgagor has
requested a material modification of the payment terms of the Serviced Loan or
(ii) such default is likely to remain unremedied for at least the period
contemplated by clause (a) of this definition; or
(c) the Master Servicer (or the Special Servicer with the consent of
the Directing Certificateholder) has determined, in its reasonable, good faith
judgment, that a default, other than as described in clause (a) or (b) of this
definition, has occurred or is imminent that may materially impair the value of
the related Mortgaged Property as security for the Loan, which default has
continued or is reasonably expected to continue unremedied for the applicable
cure period under the terms of the Serviced Loan (or, if no cure period is
specified, for 60 days); or
(d) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary action against the related
Mortgagor under any present or future U.S. federal or state bankruptcy,
insolvency or similar law or the appointment of a conservator, receiver or
liquidator in any insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceeding, or for the winding-up or liquidation of its
affairs, shall have been entered against the related Mortgagor; or
(e) the related Mortgagor shall have consented to the appointment of
a conservator, receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceeding of or relating to
such Mortgagor or of or relating to all or substantially all of its property; or
(f) the related Mortgagor shall have admitted in writing its
inability to pay its debts generally as they become due, filed a petition to
take advantage of any applicable insolvency or reorganization statute, made an
assignment for the benefit of its creditors, or voluntarily suspended payment of
its obligations; or
(g) the Master Servicer shall have received notice of the
commencement of foreclosure or similar proceedings with respect to the related
Mortgaged Property.
Notwithstanding the foregoing, with respect to the Serviced Whole
Loan, the related Mortgage Loan and the One Stamford Forum Note B shall be
deemed to be a Specially Serviced Loan if any loan within the Serviced Whole
Loan becomes a Specially Serviced Loan.
A Servicing Transfer Event with respect to any Serviced Loan shall
cease to exist:
(w) in the case of the circumstances described in clause (a) above,
if and when the related Mortgagor has made three consecutive full and timely
Monthly Payments under the terms of such Loan (as such terms may be changed or
modified in connection with a bankruptcy or similar proceeding involving the
related Mortgagor or by reason of a modification, waiver or amendment granted or
agreed to by the Master Servicer or the Special Servicer pursuant to Section
3.20);
(x) in the case of the circumstances described in clauses (b), (c)
(solely with respect to an imminent default), (d), (e) and (f) above, if and
when such circumstances cease to exist in the reasonable, good faith judgment of
the Special Servicer;
(y) in the case of the circumstances described in clause (c) above
(other than with respect to an imminent default), if and when such default is
cured in the reasonable, good faith judgment of the Special Servicer; and
(z) in the case of the circumstances described in clause (g) above,
if and when such proceedings are terminated;
so long as at that time no circumstance identified in clauses (a) through (g)
above exists that would cause the Serviced Loan to continue to be characterized
as a Specially Serviced Loan and provided no additional default is foreseeable
in the reasonable good faith judgment of the Special Servicer.
"Similar Law": As defined in Section 5.02(c).
"Single-Purpose-Entity": A Person, other than an individual, whose
organizational documents provide that it is formed solely for the purpose of
owning the related Mortgaged Property, Mortgaged Properties securing other Loans
and assets incidental to the ownership and operation of such Mortgaged Property
or Properties, and that has agreed, either in such organizational documents or
the loan documents relating to any related Loan, that it (a) does not engage in
any business unrelated to such property and the financing thereof; (b) does not
have any indebtedness other than as permitted by the related Mortgage, (c)
maintains its own books, records and accounts, in each case that are separate
and apart from the books, records and accounts of any other Person; (d) conducts
business in its own name; (e) does not guarantee or assume the debts or
obligations of any other person; (f) does not commingle its assets or funds with
those of any other Person; (g) transacts business with affiliates on an arm's
length basis; and (h) holds itself out as being a legal entity separate and
apart from any other Person. In addition, such entity's organizational documents
provide that any dissolution and winding up or insolvency filing for such entity
requires either the unanimous consent of all partners or members, as applicable,
or the consent of an independent Person (whether as a partner, member, or
director in such entity or in any Person that is the managing member or general
partner of such entity or otherwise), and either such organizational documents
or the terms of the loan documents provide that such organizational documents
may not be amended without the consent of the lender as regards such single
purpose entity requirements.
"Single Certificate": For purposes of Section 4.02(a), a Certificate
of any Class of REMIC II Regular Certificates evidencing a $1,000 denomination
or, in the case of a Class XW Certificate, a 100% Percentage Interest.
"Sole Pooled Certificateholder": Any Holder (or Holders provided
they act in unanimity) holding 100% of the Class X and Non-Investment Grade
Sequential Pay Certificates or an assignment of the voting rights thereof;
provided that the Class Principal Balances, as applicable, of the Investment
Grade Sequential Pay Certificates have been reduced to zero.
"Special Action": As defined in Section 3.21(e).
"Special Servicer": LNR Partners, Inc., its successors in interest,
or any successor special servicer appointed as herein provided.
"Special Servicing Fee": With respect to each Specially Serviced
Loan and each REO Serviced Loan, the fee designated as such and payable to the
Special Servicer pursuant to the first paragraph of Section 3.11(c).
"Special Servicing Fee Rate": With respect to each Specially
Serviced Loan and each REO Serviced Loan, 0.25% (25 basis points) per annum.
"Specially Serviced Loan": Any Serviced Loan as to which there then
exists a Servicing Transfer Event. Upon the occurrence of a Servicing Transfer
Event with respect to any Serviced Loan, such Serviced Loan shall remain a
Specially Serviced Loan until the earliest of (i) its removal from the Trust
Fund (in the case of a Mortgage Loan), (ii) an REO Acquisition with respect to
the related Mortgaged Property, and (iii) the cessation of all existing
Servicing Transfer Events with respect to such Serviced Loan.
"Startup Day": With respect to each of REMIC I and REMIC II, the day
designated as such in Section 10.01(c).
"Stated Maturity Date": With respect to any Loan, the Due Date on
which the last payment of principal is due and payable under the terms of the
related Mortgage Note as in effect on the Closing Date, without regard to any
change in or modification of such terms in connection with a bankruptcy or
similar proceeding involving the related Mortgagor or a modification, waiver or
amendment of such Loan granted or agreed to by the Master Servicer or Special
Servicer pursuant to Section 3.20 and, in the case of an ARD Loan, without
regard to its Anticipated Repayment Date.
"Stated Principal Balance": With respect to any Mortgage Loan and
any successor REO Serviced Loan, a principal amount initially equal to the
Cut-off Date Balance of such Mortgage Loan, that is permanently reduced on each
Distribution Date (to not less than zero) by (i) all payments (or P&I Advances
in lieu thereof) of, and all other collections allocated as provided in Section
1.03 to, principal of or with respect to such Mortgage Loan (or successor REO
Serviced Loan) that are (or, if they had not been applied to cover any
Additional Trust Fund Expense, would have been) distributed to
Certificateholders on such Distribution Date, and (ii) the principal portion of
any Realized Loss incurred in respect of such Mortgage Loan (or successor REO
Serviced Loan) during the related Collection Period. With respect to the One
Stamford Forum Note B (and any successor REO Serviced Loan), a principal amount
initially equal to the Cut-off Date Balance of the One Stamford Forum Note B
that is permanently reduced (to not less than zero) by (i) all payments (or P&I
Advances in lieu thereof) of, and all other collections allocated as provided in
Section 1.03 to, principal of or with respect to the One Stamford Forum Note B
(or successor REO Serviced Loan) that are (or, if they had not been applied to
cover any Additional Trust Fund Expense, would have been) distributed to the One
Stamford Forum Note B Holder, and (ii) the principal portion of any Realized
Loss incurred in respect of the One Stamford Forum Note B (or successor REO
Serviced Loan) during the related Collection Period. Notwithstanding the
foregoing, if a Liquidation Event occurs in respect of any Loan or REO Property,
then the "Stated Principal Balance" of such Loan or of the related REO Serviced
Loan, as the case may be, shall be zero commencing as of the Distribution Date
in the Collection Period next following the Collection Period in which such
Liquidation Event occurred. In addition, to the extent that principal from
general collections is used to reimburse Nonrecoverable Advances or Work-out
Delayed Reimbursement Amounts, and such amount has reduced the Principal
Distribution Amount, such amount shall not reduce the Stated Principal Balance
prior to a Liquidation Event or other liquidation or disposition of the related
Mortgage Loan or REO Property (other than for purposes of computing the Weighted
Average Adjusted Net Mortgage Rate). With respect to the Serviced Whole Loan,
the Stated Principal Balance shall be the sum of the Stated Principal Balances
of the related Mortgage Loan and the Stated Principal Balances of the One
Stamford Forum Note B.
"Sub-Servicer": Any Person with which the Master Servicer or the
Special Servicer has entered into a Sub-Servicing Agreement.
"Sub-Servicing Agreement": The written contract between the Master
Servicer or the Special Servicer, on the one hand, and any Sub-Servicer, on the
other hand as provided in Section 3.22, as the same may be modified or amended.
"Subcontractor": Any vendor, subcontractor or other Person that is
not responsible for the overall servicing (as "servicing" is commonly understood
by participants in the mortgage-backed securities market) of Mortgage Loans but
performs one or more discrete functions identified in Item 1122(d) of Regulation
AB with respect to Mortgage Loans under the direction or authority of the Master
Servicer, the Special Servicer, the Trustee, any Additional Servicer or any
Sub-Servicer.
"Subordinate Certificate": Any Class A-M, Class A-J, Class B, Class
C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class
M, Class N, Class O and Class P Certificate or a Residual Certificate.
"Substitution Shortfall Amount": An amount equal to the excess if
any of the difference between the Purchase Price of the Deleted Mortgage Loan
calculated as of the date of substitution and the Stated Principal Balance of
such Qualifying Substitute Mortgage Loan as of the date of substitution.
"Successful Bidder": As defined in Section 7.01(d).
"Tax Matters Person": With respect to each of REMIC I and REMIC II,
the Person designated as the "tax matters person" of such REMIC in the manner
provided under Treasury Regulations Section 1.860F-4(d) and Treasury Regulations
Section 301.6231(a)(7)-1. The "Tax Matters Person" for each of REMIC I and REMIC
II is the Holder of Certificates evidencing the largest Percentage Interest in
the related Class of Residual Certificates.
"Tax Returns": The federal income tax returns on IRS Form 1066, U.S.
Real Estate Mortgage Investment Conduit (REMIC) Income Tax Return, including
Schedule Q thereto, Quarterly Notice to Residual Interest Holders of REMIC
Taxable Income or Net Loss Allocation, or any successor forms, to be filed on
behalf of each of REMIC I and REMIC II due to its classification as a REMIC
under the REMIC Provisions and the tax returns due with respect to each Grantor
Trust, together with any and all other information, reports or returns that may
be required to be furnished to the Certificateholders or filed with the IRS or
any other governmental taxing authority under any applicable provisions of
federal or Applicable State Law.
"Transfer": Any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transfer Affidavit and Agreement": As defined in Section
5.02(d)(i)(B).
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer any Ownership
Interest in a Certificate.
"Trust": The common law trust created hereby.
"Trust Fund": Collectively, all of the assets of REMIC I, REMIC II,
the Grantor Trusts and the Loss of Value Reserve Fund.
"Trustee": Xxxxx Fargo Bank, N.A., in its capacity as Trustee
hereunder, its successor in interest, or any successor trustee appointed as
herein provided.
"Trustee Fee": The fee payable to the Trustee on each Distribution
Date for its services as Trustee hereunder, in an aggregate amount equal to one
month's interest at the Trustee Fee Rate in respect of each Mortgage Loan and
related REO Serviced Loan, calculated on the Stated Principal Balance as of the
Due Date in the immediately preceding Collection Period and for the same number
of days (i.e., on the basis of, as applicable, a 360-day year consisting of
twelve 30-day months or the actual number of days elapsed during each calendar
month in a 360-day year) respecting which any related interest payment due on
such Serviced Loan or deemed to be due on such related REO Serviced Loan is
computed under the terms of the related Mortgage Note (as such terms may be
changed or modified at any time following the Closing Date) and applicable law,
and without giving effect to any Excess Interest that may accrue on any ARD Loan
after its Anticipated Repayment Date.
"Trustee Fee Rate": A rate of 0.00113% per annum.
"Trustee Reports": Each of the CMSA Bond Level File and the CMSA
Collateral Summary File.
"Trustee's Website": The website maintained by the Trustee and
initially located at "xxx.xxxxxxx.xxx", or at such other address as the Trustee
may designate from time to time.
"UCC": The Uniform Commercial Code in effect in the applicable
jurisdiction.
"UCC Financing Statement": A financing statement executed (if
required by the UCC) and filed pursuant to the Uniform Commercial Code, as in
effect in the relevant jurisdiction.
"UCC-1", "UCC-2" and "UCC-3": UCC Financing Statements on Form
UCC-1, Form UCC-2 and Form UCC-3, respectively.
"Uncertificated Accrued Interest": With respect to any REMIC I
Regular Interest, for any Distribution Date, one month's interest at the REMIC I
Remittance Rate applicable to such REMIC I Regular Interest for such
Distribution Date, accrued on the REMIC I Principal Balance of such REMIC I
Regular Interest outstanding immediately prior to such Distribution Date. The
Uncertificated Accrued Interest in respect of the REMIC I Regular Interest for
any Distribution Date shall be deemed to have accrued during the applicable
Interest Accrual Period.
"Uncertificated Distributable Interest": With respect to any REMIC I
Regular Interest, for any Distribution Date, the Uncertificated Accrued Interest
in respect of such REMIC I Regular Interest for such Distribution Date, reduced
(to not less than zero) by the product of (i) the Net Aggregate Prepayment
Interest Shortfall, if any, for such Distribution Date, multiplied by (ii) a
fraction, the numerator of which is the Uncertificated Accrued Interest in
respect of such REMIC I Regular Interest for such Distribution Date, and the
denominator of which is the aggregate Uncertificated Accrued Interest in respect
of all the REMIC I Regular Interests for such Distribution Date.
"Underwriter": Each of Banc of America Securities LLC, Citigroup
Global Markets Inc. and Xxxxxxx, Xxxxx & Co.
"Underwriting Agreement: The underwriting agreement dated as of July
20, 2006 among Bank of America, the Depositor and the Underwriters.
"Unliquidated Advance": Any Advance previously made by a party
hereto that has been previously reimbursed, as between the Person that made the
Advance hereunder, on the one hand, and the Trust Fund, on the other, as part of
a Workout-Delayed Reimbursement Amount pursuant to subsections (ii) and (vi) of
Section 3.05(a) but that has not been recovered from the Borrower or otherwise
from collections on or the proceeds of the Loan or related REO Property in
respect of which the Advance was made.
"U.S. Person": A citizen or resident of the United States, a
corporation or partnership (except to the extent provided in the applicable
Treasury regulations) created or organized in, or under the laws of, the United
States any State thereof or the District of Columbia, including an entity
treated as a corporation or partnership for federal income tax purposes, or an
estate whose income is subject to United States federal income tax regardless of
its source, or a trust if a court within the United States is able to exercise
primary supervision over the administration of the trust and one or more such
U.S. Persons have the authority to control all substantial decisions of the
trust (or, to the extent provided in applicable Treasury regulations, certain
trusts in existence on August 20, 1996 that are eligible to elect to be treated
as U.S. Persons).
"Voting Rights": The portion of the voting rights of all of the
Certificates that is allocated to any Certificate. At all times during the term
of this Agreement, 98% of the Voting Rights shall be allocated among the Holders
of the various outstanding Classes of Sequential Pay Certificates in proportion
to the respective Class Principal Balances of their Certificates, and 2% of the
Voting Rights shall be allocated to the Holders of the Class XW Certificates.
None of the Class V, Class R-I or Class R-II Certificates will be entitled to
any Voting Rights. Voting Rights allocated to a Class of Certificateholders
shall be allocated among such Certificateholders in proportion to the Percentage
Interests evidenced by their respective Certificates.
"Weighted Average Adjusted Net Mortgage Rate": With respect to any
Distribution Date, the weighted average of the respective Adjusted Net Mortgage
Rates for all the Mortgage Loans and related REO Serviced Loans, weighted on the
basis of the respective Stated Principal Balances of such Mortgage Loans and REO
Serviced Loans outstanding immediately prior to such Distribution Date.
"Whole Loan Purchase Option Holder": With respect to the Whole Loan,
the holder of the related purchase option, if any, under the related
Intercreditor Agreement.
"Whole Loan": The One Stamford Forum Whole Loan.
"Withheld Amounts": As defined in Section 4.05.
"Within Grace Period Loan": With respect to any Master Servicer
Remittance Date, any Serviced Loan having any Monthly Payment remaining unpaid
past its Due Date, as of the close of business on the Determination Date in the
same calendar month, but that is not delinquent past the applicable grace period
for such Monthly Payment as of the close of business on such Determination Date.
"Workout-Delayed Reimbursement Amount": With respect to any Serviced
Loan, the amount of any Advance made with respect to such Serviced Loan on or
before the date such Serviced Loan becomes (or, but for the making of three
monthly payments under its modified terms, would then constitute) a Corrected
Serviced Loan, together with (to the extent accrued and unpaid) interest on such
Advances, to the extent that (i) such Advance is not reimbursed to the Person
who made such Advance on or before the date, if any, on which such Serviced Loan
becomes a Corrected Serviced Loan and (ii) the amount of such Advance becomes an
obligation of the Mortgagor to pay such amount under the terms of the modified
loan documents. That any amount constitutes all or a portion of any
Workout-Delayed Reimbursement Amount shall not in any manner limit the right of
any Person hereunder to determine that such amount instead constitutes a
Nonrecoverable Advance reimbursable in the same manner as any other
Nonrecoverable Advance.
"Workout Fee": With respect to each Corrected Serviced Loan, the fee
designated as such and payable to the Special Servicer pursuant to the second
paragraph of Section 3.11(c).
"Workout Fee Rate": With respect to each Corrected Serviced Loan as
to which a Workout Fee is payable, 1.0% (100 basis points).
Section 1.02 Rules of Construction; Other Definitional Provisions.
-----------------------------------------------------
Unless the context otherwise clearly requires:
(a) the definitions of terms herein shall apply equally to the singular
and plural forms of the terms defined;
(b) whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms;
(c) the words "include", "includes" and "including" shall be deemed to
be followed by the phrase "without limitation";
(d) the word "will" shall be construed to have the same meaning and
effect as the word "shall";
(e) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement,
instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on
such amendments, supplements or modifications set forth herein);
(f) any reference to any Person, or to any Person in a specified
capacity, shall be construed to include such Person's successors and
assigns or such Person's successors in such capacity, as the case
may be;
(g) unless otherwise specified herein, "pro rata" when used in reference
to more than one Class of the Certificates shall mean "pro rata"
based on the outstanding Class Principal Balances of such Classes of
Certificates;
(h) all references in this instrument to designated "Articles",
"Sections", "Subsections", "clauses" and other subdivisions are to
the designated Articles, Sections, Subsections, clauses and other
subdivisions of this Agreement as originally executed; and
(i) the words "herein", "hereof", "hereunder" and other words of similar
import refer to this Agreement as a whole and not to any particular
Article, Section, Subsection or other subdivision.
Section 1.03 Certain Calculations in Respect of the Mortgage Pool.
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(a) All amounts collected by or on behalf of the Trust in respect of
any Cross-Collateralized Set in the form of payments from Mortgagors, Insurance
Proceeds, Condemnation Proceeds and Liquidation Proceeds shall be applied among
the Mortgage Loans constituting such Cross-Collateralized Set in accordance with
the express provisions of the related loan documents and, in the absence of such
express provisions, in accordance with the Servicing Standard. All amounts
collected by or on behalf of the Trust in respect of or allocable to any
particular Mortgage Loan in the form of payments from Mortgagors, Insurance
Proceeds, Condemnation Proceeds or Liquidation Proceeds shall be applied to
amounts due and owing under the related Mortgage Note and Mortgage (including
for principal and accrued and unpaid interest) in accordance with the express
provisions of the related loan documents and, in the absence of such express
provisions or if and to the extent that such terms authorize the lender to use
its discretion, shall be applied: first, as a recovery of Nonrecoverable
Advances (including interest on such Nonrecoverable Advances) and
Workout-Delayed Reimbursement Amounts that were reimbursed from general
collections on the Mortgage Loans and resulted in principal distributed to the
Certificateholders being reduced as a result of the first proviso in the
definition of "Principal Distribution Amount", and, if applicable, unpaid
related Liquidation Expenses and any outstanding related Additional Trust Fund
Expenses; second, as a recovery of accrued and unpaid interest (excluding Excess
Interest in the case of an ARD Loan after its Anticipated Repayment Date) on
such Mortgage Loan to, but not including, the date of receipt by or on behalf of
the Trust (or, in the case of a full Monthly Payment from any Mortgagor, through
the related Due Date); third, as a recovery of principal of such Mortgage Loan
then due and owing, including by reason of acceleration of the Mortgage Loan
following a default thereunder (or, if a Liquidation Event has occurred in
respect of such Mortgage Loan, as a recovery of principal to the extent of its
entire remaining unpaid principal balance); fourth, unless a Liquidation Event
has occurred in respect of such Mortgage Loan, as a recovery of amounts to be
currently applied to the payment of, or escrowed for the future payment of, real
estate taxes, assessments, insurance premiums, ground rents (if applicable) and
similar items; fifth, unless a Liquidation Event has occurred in respect of such
Mortgage Loan, as a recovery of Reserve Funds to the extent then required to be
held in escrow; sixth, as a recovery of any Prepayment Premium then due and
owing under such Mortgage Loan; seventh, as a recovery of any Default Charges
then due and owing under such Mortgage Loan; eighth, as a recovery of any
assumption fees and modification fees then due and owing under such Mortgage
Loan; ninth, as a recovery of any other amounts then due and owing under such
Mortgage Loan other than remaining unpaid principal; tenth, as a recovery of any
remaining principal of such Mortgage Loan to the extent of its entire remaining
unpaid principal balance; and, eleventh, in the case of an ARD Loan after its
Anticipated Repayment Date, as a recovery of accrued and unpaid Excess Interest
on such ARD Loan, to but not including the date of receipt.
(b) Collections by or on behalf of the Trust in respect of each REO
Property, exclusive of amounts to be applied to the payment of the costs of
operating, managing, maintaining and disposing of such REO Property, shall be
treated: first, as a recovery of Nonrecoverable Advances (including interest on
such Nonrecoverable Advance) and Workout-Delayed Reimbursed Amounts with respect
to such REO Serviced Loan, that were reimbursed from collections on the Mortgage
Loans and resulted in principal distributed to the Certificateholders being
reduced as a result of the first proviso of the definition of "Principal
Distribution Amount"; second, as a recovery of accrued and unpaid interest
(excluding, in the case of an REO Serviced Loan that relates to an ARD Loan
after its Anticipated Repayment Date, Excess Interest) on such REO Serviced Loan
at the related Mortgage Rate in effect from time to time to but not including
the Due Date in the Collection Period of receipt; third, as a recovery of
principal of such REO Serviced Loan to the extent of its entire unpaid principal
balance; fourth, in accordance with the Servicing Standard of the Master
Servicer or the Special Servicer, as applicable, as a recovery of any other
amounts due and owing in respect of such REO Serviced Loan; fifth, as a recovery
of any other amounts deemed to be due and owing in respect of the related REO
Serviced Loan (other than, in the case of an REO Serviced Loan that relates to
an ARD Loan after its Anticipated Repayment Date, accrued and unpaid Excess
Interest); and sixth, in the case of an REO Serviced Loan that relates to an ARD
Loan after its Anticipated Repayment Date, as a recovery of any accrued and
unpaid Excess Interest on such REO Serviced Loan to but not including the date
of receipt by or on behalf of the Trust, in that order.
(c) For the purposes of calculating distributions pursuant to this
Agreement, Excess Interest on an ARD Loan shall be deemed not to constitute
principal or any portion thereof and shall not be added to the unpaid principal
balance or Stated Principal Balance of such ARD Loan. To the extent any Excess
Interest is not paid on a current basis, it shall be deemed to be deferred
interest. Any reference to the Certificate Principal Balance of any Class of
Certificates on or as of a Distribution Date shall refer to the Certificate
Balance of such Class of Certificates on such Distribution Date after giving
effect to any distributions made on such Distribution Date pursuant to Section
4.01(a).
(d) Insofar as amounts received in respect of any Mortgage Loan or
related REO Property and allocable to shared fees and shared charges owing in
respect of such Mortgage Loan or the related REO Serviced Loan, as the case may
be, that constitute Additional Master Servicing Compensation payable to the
Master Servicer and/or Additional Special Servicing Compensation payable to the
Special Servicer, are insufficient to cover the full amount of such fees and
charges, such amounts shall be allocated between such of those fees and charges
as are payable to the Master Servicer, on the one hand, and such of those fees
and charges as are payable to the Special Servicer, on the other, pro rata in
accordance with their respective entitlements.
(e) Notwithstanding anything contained herein to the contrary, with
respect to each Mortgage Loan subject to an involuntary prepayment of principal
during a Collection Period, all interest collected during such Collection Period
in connection with such involuntary prepayment of principal that the related
lender would be entitled to retain under the related loan documents shall be
treated as excess interest and shall be used to offset any shortfalls of
interest for the related Distribution Date resulting from involuntary
prepayments of principal during such Collection Period prior to such shortfalls
of interest being allocated to any Class of Certificates. Any such interest not
required to offset shortfalls of interest for the related Distribution Date
pursuant to the immediately preceding sentence shall constitute Additional
Master Servicing Compensation.
(f) The foregoing applications of amounts received in respect of any
Mortgage Loan or REO Property shall be determined by the Master Servicer and
reflected in the appropriate monthly report from the Master Servicer and in the
appropriate monthly Trustee Report as provided in Section 4.02.
If an expense under this Agreement relates in the reasonable
judgment of the Master Servicer, the Special Servicer or the Trustee, as
applicable, primarily to the administration of the Trust Fund, any REMIC formed
hereunder or to any determination respecting the amount, payment or avoidance of
any tax under the REMIC Provisions or the actual payment of any REMIC tax or
expense, or this Agreement states that any expense is solely "an expense of the
Trust Fund" or words of similar import, then such expense shall not be allocated
to, deducted or reimbursed from, or otherwise charged against the One Stamford
Forum Note B Holder and the One Stamford Forum Note B Holder shall not suffer
any adverse consequences as a result of the payment of such expense.
Section 1.04 Cross-Collateralized Mortgage Loans.
------------------------------------
Notwithstanding anything herein to the contrary, it is hereby
acknowledged that the sets of Mortgage Loans identified on the Mortgage Loan
Schedule as being cross-collateralized with each other are, in the case of each
such particular set of Mortgage Loans, by their terms, cross-defaulted and
cross-collateralized with each other. For purposes of reference only in this
Agreement, and without in any way limiting the servicing rights and powers of
the Master Servicer and/or the Special Servicer, with respect to any
Cross-Collateralized Mortgage Loan (or successor REO Serviced Loan), the
Mortgaged Property (or REO Property) that relates or corresponds thereto shall
be the property identified in the Mortgage Loan Schedule as corresponding
thereto. The provisions of this Agreement shall be interpreted in a manner
consistent with this Section 1.04; provided that, if there exists with respect
to any Cross-Collateralized Set only one original of any document referred to in
the definition of "Mortgage File" covering all the Mortgage Loans in such
Cross-Collateralized Set, then the inclusion of the original of such document in
the Mortgage File for any of the Mortgage Loans constituting such
Cross-Collateralized Set shall be deemed an inclusion of such original in the
Mortgage File for each such Mortgage Loan.
Section 1.05 Incorporation of Preliminary Statement.
---------------------------------------
The parties hereto acknowledge that the Preliminary Statement at the
beginning of this Agreement constitutes a part of this Agreement.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES; ORIGINAL
ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans.
-----------------------------
(a) It is the intention of the parties hereto that a common law
trust be established pursuant to this Agreement and further such trust be
designated as "Banc of America Commercial Mortgage Inc., Commercial Mortgage
Pass-Through Certificates, Series 2006-3". Xxxxx Fargo Bank, N.A. is hereby
appointed, and does hereby agree to act, as Trustee hereunder and, in such
capacity, to hold the Trust Fund in trust for the exclusive use and benefit of
all present and future Certificateholders. It is not intended that this
Agreement create a partnership or a joint-stock association.
(b) The Depositor, concurrently with the execution and delivery
hereof, does hereby transfer, assign, sell, set over and otherwise convey to the
Trustee, in trust, without recourse, for the benefit of the Certificateholders
(and for the benefit of the other parties to this Agreement as their respective
interests may appear) and the One Stamford Forum Note B Holder, all the right,
title and interest of the Depositor in, to and under (i) the Mortgage Loans and
all documents included in the related Mortgage Files and Servicing Files, (ii)
the Mortgage Loan Purchase and Sale Agreement and (iii) all other assets
included or to be included in the Trust Fund. Such assignment includes (i) the
Mortgage Loans that from time to time are subject to this Agreement, all
interest accrued on the Mortgage Loans on and after the Cut-off Date and all
principal payments received on the Mortgage Loans after the Cut-off Date (other
than principal and interest payments due and payable on the Mortgage Loans on or
before the Cut-off Date, which shall belong and be promptly remitted to the
Mortgage Loan Seller), together with all documents delivered or caused to be
delivered hereunder with respect to such Mortgage Loans by the Mortgage Loan
Seller; (ii) any REO Property acquired in respect of a Mortgage Loan; (iii) such
funds or assets that from time to time are deposited into the Certificate
Account, the REMIC I Distribution Account, the REMIC II Distribution Account,
the Interest Reserve Account, the Excess Interest Distribution Account, the
Excess Liquidation Proceeds Account and the REO Account (if established), and
(iv) in the case of a Mortgage Loan included in the Serviced Whole Loan, all the
right, title and interest of the Depositor in the related Intercreditor
Agreement. This conveyance is subject to the rights of the Sub-Servicers
pursuant to the Sub-Servicing Agreements, which rights are subject in any event
to this Agreement.
Under United States generally accepted accounting principles, the
Depositor shall report: (i) its acquisition of the Mortgage Loans from the
Mortgage Loan Seller, pursuant to the Mortgage Loan Purchase and Sale Agreement,
as a purchase of such Mortgage Loans from the Mortgage Loan Seller; and (ii) its
transfer of the Mortgage Loans to the Trustee, pursuant to this Section 2.01(b),
as a sale of such Mortgage Loans to the Trustee. In connection with the
foregoing, the Depositor shall cause all of its records to reflect such an
acquisition as a purchase and such a transfer as a sale (in each case, as
opposed to a secured loan).
After the Depositor's transfer of the Mortgage Loans to the Trustee
pursuant to this Section 2.01(b), the Depositor shall not take any action
inconsistent with the Trust's ownership of the Mortgage Loans.
In connection with the Depositor's assignment pursuant to this
Section 2.01(b), the Depositor hereby represents and warrants that it has
contractually obligated the Mortgage Loan Seller, at the Mortgage Loan Seller's
expense, pursuant to the Mortgage Loan Purchase and Sale Agreement, to deliver
to and deposit with, or cause to be delivered to and deposited with, the Trustee
or a Custodian appointed thereby, on or before the Closing Date, the Mortgage
File and any Additional Collateral (other than Reserve Funds) for each Mortgage
Loan acquired by the Depositor from the Mortgage Loan Seller. In addition, with
respect to each Mortgage Loan under which any Additional Collateral is in the
form of a Letter of Credit as of the Closing Date, the Depositor hereby
represents and warrants that it has contractually obligated the Mortgage Loan
Seller to cause to be prepared, executed and delivered to the issuer of each
such Letter of Credit such notices, assignments and acknowledgments as are
required under such Letter of Credit to assign, without recourse, to the Trustee
the Mortgage Loan Seller's rights as the beneficiary thereof and drawing party
thereunder; provided that the originals of such Letter of Credit shall be
delivered to the Master Servicer. The Depositor shall deliver to the Trustee on
or before the Closing Date a fully executed counterpart of the Mortgage Loan
Purchase and Sale Agreement. If the Mortgage Loan Seller fails to deliver on or
before the Closing Date, with respect to any related Mortgage Loan so assigned,
a copy of the Mortgage, a copy of any related Ground Lease, the originals and
copies of any related Letters of Credit, the original or a copy of the policy of
lender's title insurance or, if such policy has not yet been issued, a
"marked-up" pro forma title policy or commitment for title insurance marked as
binding and countersigned by the issuer or its authorized agent either on its
face or by an acknowledged closing instruction or escrow letter, or, with
respect to hospitality properties, a copy of the franchise agreement, an
original copy of the comfort letter and any transfer documents with respect to
such comfort letter, the delivery requirements of this Section 2.01(b) shall be
deemed satisfied with respect to such missing document if the Mortgage Loan
Seller delivers such document to the Trustee (or, in the case of originals of
Letters of Credit, to the Master Servicer) within 15 days following the Closing
Date. With respect to the Mortgage Loans so assigned, the Trustee shall provide
a certification within 30 days of the Closing Date that a copy of the Mortgage,
a copy of any related Ground Lease, the originals of any related Letters of
Credit, the original or a copy of the policy of lender's title insurance or, if
such policy has not yet been issued, a "marked-up" pro forma title policy or
commitment for title insurance marked as binding and countersigned by the issuer
or its authorized agent either on its face or by an acknowledged closing
instruction or escrow letter, or, with respect to hospitality properties, a copy
of the franchise agreement, an original copy of the comfort letter and any
transfer documents with respect to such comfort letter due on the Closing Date
have been delivered (with any exceptions noted). None of the Trustee, any
Custodian, the Master Servicer or the Special Servicer shall be liable for any
failure by the Mortgage Loan Seller or the Depositor to comply with the document
delivery requirements of the Mortgage Loan Purchase and Sale Agreement and this
Section 2.01(b).
The conveyance of the Mortgage Loans and the related rights and
property accomplished hereby is absolute and is intended by the parties hereto
to constitute an absolute transfer of such Mortgage Loans and such other related
rights and property by the Depositor to the Trustee for the benefit of the
Certificateholders. Furthermore, it is not intended that such conveyance be a
pledge of security for a loan. If such conveyance is determined to be a pledge
of security for a loan, however, the Depositor and the Trustee intend that the
rights and obligations of the parties to such loan shall be established pursuant
to the terms of this Agreement. The Depositor and the Trustee also intend and
agree that, in such event, (i) this Agreement shall constitute a security
agreement under applicable law, (ii) the Depositor shall be deemed to have
granted to the Trustee (in such capacity) a first priority security interest in
all of the Depositor's right, title and interest in and to the assets
constituting the Trust Fund, including the Mortgage Loans subject hereto from
time to time, all principal and interest received on or with respect to such
Mortgage Loans after the Cut-off Date (other than scheduled payments of interest
and principal due and payable on such Mortgage Loans on or prior to the related
Due Date in September 2006 or, in the case of a Replacement Mortgage Loan, on or
prior to the related date of substitution), all amounts held from time to time
in the Certificate Account, the REMIC I Distribution Account, the REMIC II
Distribution Account, the Interest Reserve Account, the Excess Interest
Distribution Account, the Excess Liquidation Proceeds Account, or the REO
Account, and all reinvestment earnings on such amounts, and all of the
Depositor's right, title and interest under the Mortgage Loan Purchase and Sale
Agreement, (iii) the possession by the Trustee or its agent of the Mortgage
Notes with respect to the Mortgage Loans subject hereto from time to time and
such other items of property that constitute instruments, money, negotiable
documents or chattel paper shall be deemed to be "possession by the secured
party" or possession by a purchaser or person designated by such secured party
for the purpose of perfecting such security interest under applicable law, and
(iv) notifications to, and acknowledgments, receipts or confirmations from,
Persons holding such property shall be deemed to be notifications to, or
acknowledgments, receipts or confirmations from, financial intermediaries,
bailees or agents (as applicable) of the Trustee for the purpose of perfecting
such security interest under applicable law.
(c) As soon as reasonably possible, and in any event within 90 days
after the later of (i) the Closing Date (or, in the case of a Replacement
Mortgage Loan substituted as contemplated by Section 2.03, after the related
date of substitution) and (ii) the date on which all recording information
necessary to complete the subject document is received by the Trustee, the
Trustee shall complete (to the extent necessary), and shall submit for recording
or filing, as the case may be, in the appropriate office for real property
records or UCC Financing Statements, as applicable, each assignment of Mortgage
and assignment of Assignment of Leases (except with respect to any Mortgage or
Assignment of Leases that has been recorded in the name of MERS or its designee)
in favor of the Trustee referred to in clauses (iv) and (v) of the definition of
"Mortgage File" that has been received by the Trustee or a Custodian on its
behalf and each original UCC-2 and UCC-3 in favor of the Trustee referred to in
clause (viii) of the definition of "Mortgage File" that has been received by the
Trustee or a Custodian on its behalf. Upon request of the Master Servicer (if
reasonably necessary for the ongoing administration and/or servicing of the
related Mortgage Loan by the Master Servicer) and at the expense of the Mortgage
Loan Seller, the Trustee shall forward to the Master Servicer a copy of any such
assignment that has been received by the Trustee. Each such assignment shall
reflect that it should be returned by the public recording office to the Trustee
following recording, and each such UCC-2 and UCC-3 shall reflect that the file
copy thereof should be returned to the Trustee following filing; provided that
in those instances where the public recording office retains the original
assignment of Mortgage or assignment of Assignment of Leases the Trustee shall
obtain therefrom a certified copy of the recorded original at the expense of the
Mortgage Loan Seller. The Trustee may assume for purposes of recordation of each
UCC-2 and UCC-3 that the Mortgage File containing the related UCC-1 includes one
state level UCC Financing Statement filing in the state of incorporation of the
related Borrower for each Mortgaged Property (or with respect to any Mortgage
Loan that has two or more related Borrowers, the state of incorporation of each
such Borrower). The Mortgage Loan Seller will deliver to the Trustee the UCC
Financing Statements, completed pursuant to Revised Article 9 of the UCC, on the
new national forms, in recordable form, to be recorded pursuant to this Section
2.01(c). The Trustee will submit such UCC Financing Statements for filing in the
state of incorporation as so indicated on the documents provided. If any such
document or instrument is lost or returned unrecorded or unfiled, as the case
may be, because of a defect therein, the Trustee shall direct the Mortgage Loan
Seller to prepare or cause to be prepared promptly, pursuant to the Mortgage
Loan Purchase and Sale Agreement, a substitute therefor or cure such defect, as
the case may be, and thereafter the Trustee shall, upon receipt thereof, cause
the same to be duly recorded or filed, as appropriate with any re-recording,
re-filing or rejection expenses at the expense of the Mortgage Loan Seller. If
the Mortgage Loan Seller has been so notified and has not prepared a substitute
document or cured such defect, as the case may be, within 60 days, the Trustee
shall promptly notify the Master Servicer, the Special Servicer, the Rating
Agencies, the One Stamford Forum Note B Holder (if the Serviced Whole Loan is
involved and the Trustee has knowledge of such Noteholder), and the Directing
Certificateholder. The Mortgage Loan Seller shall be responsible for paying the
reasonable fees and out-of-pocket expenses of the Trustee in connection with the
above-referenced recording and filing of documents insofar as it relates to the
Mortgage Loans transferred by the Mortgage Loan Seller and acquired by the
Depositor from the Mortgage Loan Seller, all as more particularly provided for
in the Mortgage Loan Purchase and Sale Agreement.
(d) In connection with the Depositor's assignment pursuant to
Section 2.01(b), the Depositor hereby represents and warrants that it has
contractually obligated the Mortgage Loan Seller, at the Mortgage Loan Seller's
expense, pursuant to the Mortgage Loan Purchase and Sale Agreement, to deliver
to and deposit with, or cause to be delivered to and deposited with, the Master
Servicer or its designee, on or before the Closing Date, the following items:
(i) asset summaries delivered to the Rating Agencies, originals or copies of all
financial statements, appraisals, environmental/engineering reports, leases,
rent rolls and tenant estoppels in the possession or under the control of the
Mortgage Loan Seller that relate to the Mortgage Loans transferred by the
Mortgage Loan Seller to the Depositor and, to the extent they are not required
to be a part of a Mortgage File in accordance with the definition thereof,
originals or copies of all documents, certificates, letters of credit,
environmental insurance policies and related endorsements, and opinions in the
possession or under the control of the Mortgage Loan Seller that were delivered
by or on behalf of the related Mortgagors in connection with the origination of
such Mortgage Loans and that are reasonably required for the ongoing
administration and servicing of such Mortgage Loans (except to the extent such
items represent draft documents, internal notes, attorney-client privileged
communications or credit analyses); and (ii) all unapplied Reserve Funds and
Escrow Payments in the possession or under the control of the Mortgage Loan
Seller that relate to, and that are required for the ongoing administration and
servicing of, the Mortgage Loans transferred by the Mortgage Loan Seller to the
Depositor. The Master Servicer shall hold all such documents, records and funds
on behalf of the Trustee in trust for the benefit of the Certificateholders.
(e) In the event a Mortgage Loan is repurchased by the Mortgage Loan
Seller, the Trustee shall re-assign any rights that the Mortgage Loan Seller had
with respect to representations and warranties made by a third party originator
to the Mortgage Loan Seller under the Mortgage Loan Purchase and Sale Agreement
to the Mortgage Loan Seller in respect of any such Mortgage Loan.
Section 2.02 Acceptance of REMIC I by Trustee.
---------------------------------
(a) The Trustee, by the execution and delivery of this Agreement,
acknowledges receipt by it or a Custodian on its behalf of, subject to the
provisions of Section 2.01 and to the further review provided for in this
Section 2.02, and further subject to the Schedule of Exceptions attached hereto
as Schedule III, with respect to each Mortgage Loan, an original Mortgage Note
endorsed to the Trustee and declares that it or a Custodian on its behalf holds
and will hold the documents delivered or caused to be delivered by the Mortgage
Loan Seller in respect of the Mortgage Loans, and that it holds and will hold
all other assets included in REMIC I in trust for the exclusive use and benefit
of all present and future Certificateholders (other than the Class V
Certificateholders) and the Trustee as holder of the REMIC I Regular Interests.
To the extent that the Mortgage File for a Mortgage Loan included in the
Serviced Whole Loan relates to the One Stamford Forum Note B, the Trustee shall
also hold such Mortgage File for the use and benefit of the One Stamford Forum
Note B Holder.
(b) On or about the ninetieth day following the Closing Date, the
Trustee or a Custodian on its behalf shall review the documents delivered to it
or such Custodian with respect to each Mortgage Loan, and the Trustee shall,
subject to Sections 1.04, 2.02(c) and 2.02(d), certify electronically or in
writing (substantially in the form of Exhibit F) to each of the other parties
hereto, the Mortgage Loan Seller, the One Stamford Forum Note B Holder (if the
Serviced Whole Loan is involved and the Trustee has knowledge of such Holder),
and the Directing Certificateholder, that, as to each Mortgage Loan then subject
to this Agreement (except as specifically identified in any exception report
annexed to such certification): (i) the original Mortgage Note specified in
clause (i) of the definition of "Mortgage File" and all allonges thereto, if any
(or a copy of such Mortgage Note, together with a lost note affidavit certifying
that the original of such Mortgage Note has been lost), the original or copy of
documents specified in clauses (ii) through (vii) and (xii) of the definition of
"Mortgage File" (without regard to the parenthetical), have been received by it
or a Custodian on its behalf; (ii) if such report is due more than 180 days
after the Closing Date, the recordation/filing contemplated by Section 2.01(c)
has been completed (based solely on receipt by the Trustee of the particular
recorded/filed documents); (iii) all documents received by it or any Custodian
with respect to such Mortgage Loan have been reviewed by it or by such Custodian
on its behalf and (A) appear regular on their face (handwritten additions,
changes or corrections shall not constitute irregularities if initialed by the
Mortgagor), (B) appear to have been executed and (C) purport to relate to such
Mortgage Loan; and (iv) the Trustee on behalf of the Trust is shown as the owner
of each Mortgage recorded in the name of MERS or its designee. The Trustee may
assume that, for purposes of reviewing the items in clause (viii) of the
definition of Mortgage File and completing the certification attached hereto as
Exhibit F, the related UCC-1 includes one state level UCC Financing Statement
filing in the state of incorporation of the related Borrower for each Mortgaged
Property (or with respect to any Mortgage Loan that has two or more related
Borrowers, the state of incorporation of each such Borrower). If any exceptions
are noted or if the recordation/filing contemplated by Section 2.01(c) has not
been completed (based solely on receipt by the Trustee of the particular
documents showing evidence of the recordation/filing), the Trustee shall every
90 days after the ninetieth day following the Closing Date until the earliest of
(i) the date on which such exceptions are eliminated and such recordation/filing
has been completed, (ii) the date on which all the Defective Mortgage Loans are
removed from the Trust Fund, and (iii) the second anniversary of the Closing
Date), distribute an updated exception report to the recipients of the above
mentioned certification that was submitted to such recipients substantially in
the form of Exhibit F. At any time subsequent to the second anniversary of the
Closing Date, the Trustee shall, upon request and at the requesting party's
expense, prepare and deliver to the requesting party (including any
Certificateholder or Certificate Owner) an updated version of the exception
report provided for in the prior sentence.
(c) If the Mortgage Loan Seller substitutes a Replacement Mortgage
Loan for any Defective Mortgage Loan as contemplated by Section 2.03, the
Trustee or a Custodian on its behalf shall review the documents delivered to it
or such Custodian with respect to such Replacement Mortgage Loan, and the
Trustee shall deliver a certification comparable to that described in the prior
paragraph, in respect of such Replacement Mortgage Loan, on or about the
thirtieth day following the related date of substitution (and, if any exceptions
are noted, every 90 days thereafter until the earliest of (i) the date on which
such exceptions are eliminated and all related recording/filing has been
completed, (ii) the date on which such Replacement Mortgage Loan is removed from
the Trust Fund and (iii) the second anniversary of the date on which such
Replacement Mortgage Loan was added to the Trust Fund). At any time subsequent
to the second anniversary of the date on which such Replacement Mortgage Loan is
added to the Trust Fund, the Trustee shall, upon request, prepare and deliver to
the requesting party (including any Certificateholder or Certificate Owner) an
updated version of the exception report provided for in the prior sentence.
(d) None of the Trustee, the Master Servicer, the Special Servicer
or any Custodian is under any duty or obligation (i) to determine whether any of
the documents specified in clauses (iii), (v), (vi) and (viii) through (xii) of
the definition of "Mortgage File" exist or are required to be delivered by the
Mortgage Loan Seller in respect of any Mortgage Loan, or (ii) to inspect, review
or examine any of the documents, instruments, certificates or other papers
relating to the Mortgage Loans delivered to it to determine that the same are
valid, legal, effective, genuine, binding, enforceable, sufficient or
appropriate for the represented purpose or that they are other than what they
purport to be on their face. Notwithstanding the foregoing, with respect to
Letters of Credit referenced in clause (xii) of the definition of "Mortgage
File" the Trustee shall perform the review set forth in Sections 2.02(b)(iii)(A)
through (C). Furthermore, except as expressly provided in Section 2.02(b), none
of the Trustee, the Master Servicer, the Special Servicer or any Custodian shall
have any responsibility for determining whether the text of any assignment or
endorsement is in proper or recordable form, whether the requisite recording of
any document is in accordance with the requirements of any applicable
jurisdiction, or whether a blanket assignment is permitted in any applicable
jurisdiction.
(e) In performing the reviews contemplated by subsections (b) and
(c) above, the Trustee may conclusively rely on the Mortgage Loan Seller as to
the purported genuineness of any such document and any signature thereon. It is
understood that the scope of the Trustee's review of the Mortgage Files is
limited solely to confirming that the documents specified in clauses (i) through
(v) and clause (vii) of the definition of "Mortgage File", have been received
and such additional information as will be necessary for delivering the
certifications required by subsections (a) and (b) above. If the Mortgage Loan
Seller is notified of or discovers any error in a Mortgage Loan Checklist, then
the Mortgage Loan Seller shall amend such Mortgage Loan Checklist within 180
days and distribute such Mortgage Loan Checklist to each of the other parties
hereto; provided, however, that an error in such Mortgage Loan Checklist by
itself shall not be deemed to be a Material Breach or Material Document Defect.
Such new, corrected Mortgage Loan Checklist shall be deemed to amend and replace
the existing Mortgage Loan Checklist; provided, however, that the correction or
amendment of such Mortgage Loan Checklist by itself shall not be deemed to be a
cure of a Material Breach or Material Document Defect.
Section 2.03 Mortgage Loan Seller's Repurchase or Substitution of
----------------------------------------------------
Mortgage Loans for Material Document Defects and Material Breaches.
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(a) If any party hereto discovers, or receives written notice from a
non-party, that a Document Defect or Breach exists with respect to any Mortgage
Loan, then such party shall give prompt written notice thereof to the other
parties hereto, including (unless it is the party that discovered the Document
Defect or Breach) the Trustee. Upon the Trustee's discovery or receipt of notice
that a Document Defect or Breach exists with respect to any Mortgage Loan, the
Trustee shall notify the Directing Certificateholder, the One Stamford Forum
Note B Holder (if the Serviced Whole Loan is involved and the Trustee has
knowledge of such Holder), and the Mortgage Loan Seller.
(b) If necessary, the Trustee shall request the Mortgage Loan Seller
to comply with Section 4(c) of the Mortgage Loan Purchase and Sale Agreement
with respect to any Document Defect or other deficiency in a Mortgage File
relating to a Mortgage Loan. If the Trustee becomes aware of any failure on the
part of the Mortgage Loan Seller to do so, the Trustee shall promptly notify the
Master Servicer and the Special Servicer.
(c) Promptly upon its becoming aware of any Material Document Defect
or Material Breach with respect to any Mortgage Loan, the Master Servicer shall
(and the Special Servicer may) notify the Mortgage Loan Seller in writing of
such Material Document Defect or Material Breach, as the case may be, and direct
the Mortgage Loan Seller that it must, not later than 90 days from the receipt
by such parties of such notice (such 90-day period, the "Initial Resolution
Period"), correct or cure such Material Document Defect or Material Breach, as
the case may be, in all material respects, or repurchase the Defective Mortgage
Loan (as, if and to the extent required by the Mortgage Loan Purchase and Sale
Agreement), at the applicable Purchase Price; provided, however, that if the
Mortgage Loan Seller certifies in writing to the Trustee (i) that, as evidenced
by an accompanying Opinion of Counsel, any such Material Breach or Material
Document Defect, as the case may be, does not and will not cause the Defective
Mortgage Loan, to fail to be a "qualified mortgage" within the meaning of
Section 860G(a)(3) of the Code, (ii) that such Material Breach or Material
Document Defect, as the case may be, is capable of being corrected or cured but
not within the applicable Initial Resolution Period, (iii) that the Mortgage
Loan Seller has commenced and is diligently proceeding with the cure of such
Material Breach or Material Document Defect, as the case may be, within the
applicable Initial Resolution Period, and (iv) that the Mortgage Loan Seller
anticipates that such Material Breach or Material Document Defect, as the case
may be, will be corrected or cured within an additional period not to exceed the
Resolution Extension Period (a copy of which certification shall be delivered by
the Trustee to the Master Servicer, the Special Servicer, the Directing
Certificateholder, and the One Stamford Forum Note B Holder (if the Serviced
Whole Loan is involved and the Trustee has knowledge of such Holder), then the
Mortgage Loan Seller shall have an additional period equal to the applicable
Resolution Extension Period to complete such correction or cure or, failing
such, to repurchase the Defective Mortgage Loan; provided, further, that, in
lieu of effecting any such repurchase (but, in any event, no later than such
repurchase would have to have been completed), the Mortgage Loan Seller shall be
permitted, during the three-month period following the Startup Day for REMIC I
(or during the two-year period following such Startup Day if the affected
Mortgage Loan is a "defective obligation" within the meaning of Section
860G(a)(4)(B)(ii) of the Code and Treasury Regulations Section 1.860G-2(f)), to
replace the affected Mortgage Loan with one or more Qualifying Substitute
Mortgage Loans and to pay a cash amount equal to the applicable Substitution
Shortfall Amount, subject to any other applicable terms and conditions of the
Mortgage Loan Purchase and Sale Agreement and this Agreement. If any
substitution for a Deleted Mortgage Loan is not completed in all respects by the
end of the three-month (or, if applicable, the two-year) period contemplated by
the preceding sentence, the Mortgage Loan Seller shall be barred from doing so
(and, accordingly, will be limited to the cure/repurchase remedies contemplated
hereby), and no party hereto shall be liable thereto for any loss, liability or
expense resulting from the expiration of such period. If any Mortgage Loan is to
be repurchased or replaced as contemplated by this Section 2.03, the Master
Servicer shall designate the Certificate Account as the account to which funds
in the amount of the applicable Purchase Price or Substitution Shortfall Amount
(as the case may be) are to be wired, and the Master Servicer shall promptly
notify the Trustee when such deposit is made. Any such repurchase or replacement
of a Mortgage Loan shall be on a whole loan, servicing released basis.
(d) If one or more of the Mortgage Loans constituting a
Cross-Collateralized Set are the subject of a Breach or Document Defect, then,
for purposes of (i) determining whether such Breach or Document Defect is a
Material Breach or Material Document Defect, as the case may be, and (ii) the
application of remedies, such Cross-Collateralized Set shall be treated as a
single Mortgage Loan.
If (x) any Mortgage Loan is required to be repurchased or
substituted as contemplated in this Section 2.03, (y) such Mortgage Loan is a
Crossed-Collateralized Mortgage Loan or is secured by a portfolio of Mortgaged
Properties and the related loan documents provide that a Mortgaged Property may
be uncrossed from the other Mortgaged Properties in that portfolio, and (z) the
applicable Material Breach or Material Document Defect does not constitute a
Material Breach or Material Document Defect, as the case may be, as to any
related Crossed-Collateralized Mortgage Loan or applies to only specific
Mortgaged Properties included in such portfolio (without regard to this
paragraph), then the applicable Material Breach or Material Document Defect (as
the case may be) will be deemed to constitute a Material Breach or Material
Document Defect (as the case may be) as to any related Crossed-Collateralized
Mortgage Loan and to each other Mortgaged Property included in such portfolio
and the related Mortgage Loan Seller shall repurchase or substitute for any
related Crossed-Collateralized Mortgage Loan in the manner described above
unless, in the case of a Material Breach or Material Document Defect, both of
the following conditions would be satisfied if the Mortgage Loan Seller were to
repurchase or substitute for only the affected Crossed-Collateralized Mortgage
Loans or affected Mortgaged Properties as to which a Material Breach or Material
Document Defect had occurred without regard to this paragraph as calculated by
the Master Servicer (with the approval of the Special Servicer and the Directing
Certificateholder): (i) the debt service coverage ratio for any related
Cross-Collateralized Mortgage Loans or Mortgaged Properties for the four
calendar quarters immediately preceding the repurchase or substitution is not
less than the greater of (a) the debt service coverage ratio immediately prior
to the repurchase, and (b) the debt service coverage ratio on the Closing Date,
subject to a floor of 1.25x, and (ii) the loan-to-value ratio for any related
Crossed-Collateralized Mortgage Loans or Mortgaged Properties is not greater
than the lesser of (a) the loan-to-value ratio immediately prior to the
repurchase and (b) the loan-to-value ratio on the Closing Date, subject to a cap
of 75%. In the event that both of the conditions set forth in the preceding
sentence would be satisfied, the Mortgage Loan Seller may elect either to
repurchase or substitute for only the affected Crossed-Collateralized Mortgage
Loan or Mortgaged Properties as to which the Material Breach or Material
Document Defect exists or to repurchase or substitute for the aggregate
Crossed-Collateralized Mortgage Loans or Mortgaged Properties.
To the extent that the Mortgage Loan Seller repurchases or
substitutes for an affected Cross-Collateralized Mortgage Loan or Mortgaged
Property in the manner prescribed above while the Trustee continues to hold any
related Cross-Collateralized Mortgage Loans, the Mortgage Loan Seller and the
Depositor shall either uncross the repurchased Cross-Collateralized Mortgage
Loan or affected Mortgaged Property (provided the Depositor has received an
Opinion of Counsel that uncrossing the repurchased Cross-Collateralized Mortgage
Loan will not adversely affect the status of REMIC I or REMIC II as a REMIC
under the Code) or shall forbear from enforcing any remedies against the other's
Primary Collateral, but each is permitted to exercise remedies against the
Primary Collateral securing its respective affected Cross-Collateralized
Mortgage Loans or Mortgaged Properties, including, with respect to the Trustee,
the Primary Collateral securing Mortgage Loans still held by the Trustee, so
long as such exercise does not materially impair the ability of the other party
to exercise its remedies against its Primary Collateral. If the exercise of
remedies by one party would materially impair the ability of the other party to
exercise its remedies with respect to the Primary Collateral securing the
Cross-Collateralized Mortgage Loans or Mortgaged Properties held by such party,
then both parties shall forbear from exercising such remedies until the loan
documents can be modified to remove the threat of such impairment as a result of
the exercise of remedies.
(e) Whenever one or more mortgage loans are substituted for a
Defective Mortgage Loan by the Mortgage Loan Seller as contemplated by this
Section 2.03, the Master Servicer shall direct such party effecting the
substitution to deliver the related Mortgage File to the Trustee, to certify
that such substitute mortgage loan satisfies or such substitute mortgage loans
satisfy, as the case may be, all of the requirements of the definition of
"Qualifying Substitute Mortgage Loan" and to send such certification to the
Trustee. No mortgage loan may be substituted for a Defective Mortgage Loan as
contemplated by this Section 2.03 if the Mortgage Loan to be replaced was itself
a Replacement Mortgage Loan, in which case, absent a cure of the relevant
Material Breach or Material Document Defect, the Defective Mortgage Loan will be
required to be repurchased as contemplated hereby. Monthly Payments due with
respect to each Replacement Mortgage Loan (if any) after the related date of
substitution, and Monthly Payments due with respect to each corresponding
Deleted Mortgage Loan (if any) after the related Due Date in September 2006 and
on or prior to the related date of substitution, shall be part of the Trust
Fund. Monthly Payments due with respect to each Replacement Mortgage Loan (if
any) on or prior to the related date of substitution, and Monthly Payments due
with respect to each corresponding Deleted Mortgage Loan (if any) after the
related date of substitution, shall not be part of the Trust Fund and are to be
remitted by the Master Servicer to the party effecting the related substitution
promptly following receipt.
(f) If any Mortgage Loan is to be repurchased or replaced by the
Mortgage Loan Seller as contemplated by this Section 2.03, the Master Servicer
shall direct the Mortgage Loan Seller to amend the related Mortgage Loan
Schedule to reflect the removal of any Deleted Mortgage Loan and, if applicable,
the substitution of the related Replacement Mortgage Loan(s); and, upon its
receipt of such amended Mortgage Loan Schedule, the Master Servicer shall
deliver or cause the delivery of such amended Mortgage Loan Schedule to the
other parties hereto. Upon any substitution of one or more Replacement Mortgage
Loans for a Deleted Mortgage Loan, such Replacement Mortgage Loan(s) shall
become part of the Trust Fund and be subject to the terms of this Agreement in
all respects.
(g) Upon receipt of a Request for Release (in the form of Exhibit D
attached hereto) and an Officer's Certificate from the Master Servicer to the
effect that the full amount of the Purchase Price or Substitution Shortfall
Amount (as the case may be) for any Mortgage Loan repurchased or replaced by the
Mortgage Loan Seller as contemplated by this Section 2.03 has been deposited
into the Certificate Account, and further, if applicable, upon receipt of the
Mortgage File for each Replacement Mortgage Loan (if any) to be substituted for
a Deleted Mortgage Loan, together with the certification referred to in Section
2.03(e) from the party effecting the substitution, if any, the Trustee shall (i)
release or cause the release of the Mortgage File and any Additional Collateral
held by or on behalf of the Trustee for the Deleted Mortgage Loan to the party
effecting the repurchase/substitution or its designee and (ii) execute and
deliver such instruments of release, transfer and/or assignment, in each case
without recourse, as shall be provided to it and are reasonably necessary to
vest in the party effecting the repurchase/substitution or its designee the
ownership of the Deleted Mortgage Loan, and the Master Servicer shall notify the
applicable Mortgagors of the transfers of the Deleted Mortgage Loan(s) and any
Replacement Mortgage Loan(s). If the Mortgage related to the Deleted Mortgage
Loan has been recorded in the name of MERS or its designee, the Master Servicer
shall take all necessary action to reflect the release of such Mortgage on the
records of MERS. In connection with any such repurchase or substitution by the
Mortgage Loan Seller, each of the Master Servicer and the Special Servicer shall
deliver to the party effecting the repurchase/substitution or its designee any
portion of the related Servicing File, together with any Escrow Payments,
Reserve Funds and Additional Collateral, held by or on behalf of the Master
Servicer or the Special Servicer, as the case may be, with respect to the
Deleted Mortgage Loan, in each case at the expense of the party effecting the
repurchase/substitution. The reasonable "out-of-pocket" costs and expenses
incurred by the Master Servicer, the Special Servicer and/or the Trustee
pursuant to this Section 2.03(g), shall be payable to each of them, first, by
the Mortgage Loan Seller to the extent the Mortgage Loan Seller was required to
repurchase the affected Mortgage Loan, and then as Servicing Advances in respect
of the affected Mortgage Loan.
(h) The applicable Mortgage Loan Purchase and Sale Agreement
provides the sole remedy available to the Certificateholders, or the Trustee on
their behalf, respecting any Breach or Document Defect with respect to Mortgage
Loans sold by the Mortgage Loan Seller. If the Mortgage Loan Seller defaults on
its obligations to repurchase or replace any Mortgage Loan as contemplated by
this Section 2.03, the Master Servicer shall (and the Special Servicer may)
promptly notify the Trustee in writing, and the Trustee shall notify the
Certificateholders. Thereafter, the Master Servicer (with respect to Performing
Serviced Loans where the defaulting Mortgage Loan Seller is not an Affiliate of
the Master Servicer) and the Special Servicer (with respect to Specially
Serviced Loans and with respect to Performing Serviced Loans where the
defaulting Mortgage Loan Seller is an Affiliate of the Master Servicer) shall
take such actions on behalf of the Trust with respect to the enforcement of such
repurchase/substitution obligations (and if the Master Servicer is notified or
otherwise becomes aware of a default on the part of the Mortgage Loan Seller in
respect of its obligations under Section 4 of the Mortgage Loan Purchase and
Sale Agreement, the Master Servicer shall also take such actions on behalf of
the Trust with respect to the enforcement of such obligations of the Mortgage
Loan Seller), including the institution and prosecution of appropriate legal
proceedings, as the Master Servicer or the Special Servicer shall determine are
in the best interests of the Certificateholders (taken as a collective whole).
Any and all reasonable "out-of-pocket" costs and expenses incurred by the Master
Servicer, the Special Servicer and/or the Trustee pursuant to this Section
2.03(h), including reasonable attorney fees and expenses to the extent not
collected from the defaulting Mortgage Loan Seller because the Mortgage Loan
Seller either failed, or was not required, to cure the subject actual or alleged
Breach or Document Defect or repurchase/replace the affected related Mortgage
Loan, shall constitute Servicing Advances in respect of the affected Mortgage
Loan.
Without limiting the Trustee's duties under this Section 2.03, the
Trustee irrevocably designates the Special Servicer, with respect to the
Specially Serviced Loans, and the Master Servicer, with respect to Performing
Serviced Loans, for the benefit of Certificateholders to use reasonable efforts
to enforce, after notice to the Trustee, any of the obligations of the Mortgage
Loan Seller under the Mortgage Loan Purchase and Sale Agreement. Such
enforcement including, without limitation, the legal prosecution of claims,
shall be carried out in such form, to such extent and at such time as the
Special Servicer or Master Servicer, as the case may be, shall reasonably
determine is in the best interests of the Certificateholders (taken as a
collective whole). All out-of-pocket expenses (including attorney's fees and
litigation costs and expenses) incurred by the Special Servicer or Master
Servicer, as the case may be, in carrying out its obligations hereunder shall be
reimbursable to the Special Servicer or Master Servicer, as the case may be, and
constitute Additional Trust Fund Expenses. The Trustee shall upon request
promptly furnish or cause to be furnished to the Special Servicer or Master
Servicer, as the case may be, limited powers of attorney and other documents
necessary, delivered to it by the Special Servicer or Master Servicer, as the
case may be, for execution, or appropriate to enable the Special Servicer or
Master Servicer, as the case may be, to carry out such enforcement duties
subject to Section 3.01(c).
(i) In the event that either pursuant to a settlement agreed to by
the Mortgage Loan Seller and the Special Servicer on behalf of the Trust (it
being understood that the provisions of this Section 2.03(i) shall not
constitute a waiver of the Trust's rights under Section 2.03(h) unless the
Special Servicer, on behalf of the Trust, has agreed to accept a loss of value
payment in lieu of the Trust's rights under Section 2.03(h)) or a judicial
order, the Mortgage Loan Seller makes a cash payment, either as a cure of a
Material Breach or a Material Defect, or in lieu of a repurchase of a Mortgage
Loan on which a Material Breach or a Material Defect exists or is alleged to
exist (each such payment, a "Loss of Value Payment") with respect to such
Mortgage Loan, the amount of each such Loss of Value Payment shall be determined
either (i) by mutual agreement of the Special Servicer on behalf of the Trust
with respect to such Material Breach or Material Defect, as the case may be, and
the Mortgage Loan Seller or (ii) by judicial decision. Provided that such Loss
of Value Payment is made, the Loss of Value Payment shall serve as the sole
remedy available to the Certificateholders and the Trustee on their behalf
regarding any such Material Breach or Material Defect in lieu of any obligation
of the Mortgage Loan Seller to otherwise cure such Material Breach or Material
Defect or repurchase the Defective Mortgage Loan based on such Material Breach
or Material Defect under any circumstances. In the event there is a Loss of
Value Payment made by the Mortgage Loan Seller in accordance with this Section
2.03(i), the amount of such Loss of Value Payment shall be deposited into the
Loss of Value Reserve Fund to be applied in accordance with Section 3.05(g).
Section 2.04 Representations and Warranties of the Depositor.
------------------------------------------------
(a) The Depositor hereby represents and warrants to each of the
other parties to this Agreement and for the benefit of the Certificateholders
and the One Stamford Forum Note B Holder, as of the Closing Date, that:
(i) The Depositor is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware.
(ii) The execution and delivery of this Agreement by the Depositor,
and the performance and compliance with the terms of this Agreement by the
Depositor, do not violate the Depositor's certificate of incorporation or
bylaws or constitute a default (or an event that, with notice or lapse of
time, or both, would constitute a default) under, or result in the breach
of, any material agreement or other instrument to which it is a party or
that is applicable to it or any of its assets.
(iii) The Depositor has the full power and authority to enter into
and consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Depositor, enforceable against the Depositor
in accordance with the terms hereof, except as such enforcement may be
limited by (A) applicable bankruptcy, insolvency, receivership,
reorganization, liquidation, fraudulent transfer, moratorium and other
laws affecting the enforcement of creditors' rights generally, and (B)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(v) The Depositor is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement do not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Depositor's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Depositor to perform its obligations under this Agreement or the
financial condition of the Depositor.
(vi) The transfer of the Mortgage Loans to the Trustee as
contemplated herein requires no regulatory approval, other than any such
approvals as have been obtained, and is not subject to any bulk transfer
or similar law in effect in any applicable jurisdiction.
(vii) No litigation is pending or, to the best of the Depositor's
knowledge, threatened against the Depositor that would prohibit the
Depositor from entering into this Agreement or, in the Depositor's good
faith and reasonable judgment, is likely to materially and adversely
affect either the ability of the Depositor to perform its obligations
under this Agreement or the financial condition of the Depositor.
(viii) Immediately prior to the transfer of the Mortgage Loans by
the Depositor to the Trustee hereunder, the Depositor had good and
marketable title to, and was the sole owner of, each such Mortgage Loan,
free and clear of any and all liens, encumbrances and other interests on,
in or to such Mortgage Loan.
(ix) No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or
body is required for the consummation by the Depositor of the transactions
contemplated herein, except for those consents, approvals, authorizations
and orders that previously have been obtained and those filings and
registrations that previously have been completed, and except for those
filings and recordings of loan documents and assignments thereof that are
contemplated by this Agreement to be completed after the Closing Date.
(x) The Depositor has been solvent at all relevant times prior to,
and will not be rendered insolvent by, its transfer of the Mortgage Loans
to the Trustee, pursuant to Section 2.01(b).
(xi) After giving effect to its transfer of the Mortgage Loans to
the Trustee, pursuant to Section 2.01(b), the value of the Depositor's
assets, either taken at their present fair saleable value or at fair
valuation, will exceed the amount of the Depositor's debts and
obligations, including contingent and unliquidated debts and obligations
of the Depositor, and the Depositor will not be left with unreasonably
small assets or capital with which to engage in and conduct its business.
(xii) The Depositor does not intend to, and does not believe that it
will, incur debts or obligations beyond its ability to pay such debts and
obligations as they mature.
(xiii) No proceedings looking toward merger, liquidation,
dissolution or bankruptcy of the Depositor are pending or contemplated.
(xiv) Immediately prior to the transfer of the Mortgage Loans to the
Trustee for the benefit of the Certificateholders pursuant to this
Agreement, the Depositor had such right, title and interest in and to each
Mortgage Loan as was transferred to it by the Mortgage Loan Seller
pursuant to the Mortgage Loan Purchase and Sale Agreement. The Depositor
has not transferred any of its right, title and interest in and to the
Mortgage Loans to any Person other than the Trustee.
(xv) Except for any actions that are the express responsibility of
another party hereunder or under the Mortgage Loan Purchase and Sale
Agreement, and further except for actions that the Depositor is expressly
permitted to complete subsequent to the Closing Date, the Depositor has
taken all actions required under applicable law to effectuate the transfer
of all of its right, title and interest in and to the Mortgage Loans by
the Depositor to the Trustee.
(b) Upon discovery by any of the parties hereto of a breach of any
of the foregoing representations and warranties that materially and adversely
affects the interests of the Certificateholders or any party hereto, the party
discovering such breach shall give prompt written notice to each of the other
parties hereto.
Section 2.05 Representations and Warranties of the Master Servicer.
------------------------------------------------------
(a) The Master Servicer hereby represents and warrants to the other
parties hereto and for the benefit of the Certificateholders and the One
Stamford Forum Note B Holder, as of the Closing Date, that:
(i) The Master Servicer is duly organized, validly existing and in
good standing as a national banking association under the laws of the
United States of America, and the Master Servicer is in compliance with
the laws of each jurisdiction in which any Mortgaged Property is located
to the extent necessary to perform its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Master
Servicer, and the performance and compliance with the terms of this
Agreement by the Master Servicer, do not violate the Master Servicer's
organizational documents or constitute a default (or an event that, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material agreement or other instrument to
which it is a party or that is applicable to it or any of its assets,
which default or breach, in the Master Servicer's good faith and
reasonable judgment, is likely to materially and adversely affect the
ability of the Master Servicer to perform its obligations under this
Agreement.
(iii) The Master Servicer has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement, has
duly authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Master Servicer, enforceable against the
Master Servicer in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency, reorganization, moratorium and other
laws affecting the enforcement of creditors' rights generally, and (B)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(v) The Master Servicer is not in violation of, and its execution
and delivery of this Agreement and its performance and compliance with the
terms of this Agreement do not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Master Servicer's good faith and
reasonable judgment, is likely to affect materially and adversely either
the ability of the Master Servicer to perform its obligations under this
Agreement or the financial condition of the Master Servicer.
(vi) No litigation is pending or, to the best of the Master
Servicer's knowledge, threatened against the Master Servicer that would
prohibit the Master Servicer from entering into this Agreement or, in the
Master Servicer's good faith and reasonable judgment, is likely to
materially and adversely affect either the ability of the Master Servicer
to perform its obligations under this Agreement or the financial condition
of the Master Servicer.
(vii) Each officer or employee of the Master Servicer that has
responsibilities concerning the servicing and administration of the
Serviced Loans is covered by errors and omissions insurance in the amounts
and with the coverage required by Section 3.07(c). None of the Master
Servicer or any of its officers or employees that is involved in the
servicing or administration of the Serviced Loans has been refused such
coverage or insurance.
(viii) No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or
body is required for the consummation by the Master Servicer of the
transactions contemplated herein, except for those consents, approvals,
authorizations and orders that previously have been obtained and those
filings and registrations that previously have been completed.
(ix) The Master Servicer has examined each of the Sub-Servicing
Agreements entered into by the Master Servicer that will be in effect as
of the Closing Date with respect to the Serviced Loans, and each such
Sub-Servicing Agreement complies with the requirements of Section 3.22(a)
in all material respects.
(b) The representations and warranties of the Master Servicer set
forth in Section 2.05(a) shall survive the execution and delivery of this
Agreement and inure to the benefit of the Persons for whose benefit they were
made for so long as the Trust remains in existence. Upon discovery by any of the
parties hereto of a breach of any of such representations and warranties that
materially and adversely affects the interests of the Certificateholders or any
party hereto, the party discovering such breach shall give prompt written notice
to each of the other parties hereto.
(c) Each successor Master Servicer (if any) shall be deemed to have
made, as of the date of its succession, each of the representations set forth in
Section 2.05(a), subject to such appropriate modifications to the representation
and warranty set forth in Section 2.05(a)(i) to accurately reflect such
successor's jurisdiction of organization and whether it is a corporation,
partnership, bank, association or other type of organization.
Section 2.06 Representations and Warranties of the Special Servicer.
-------------------------------------------------------
(a) The Special Servicer hereby represents and warrants to the other
parties hereto and for the benefit of the Certificateholders and the One
Stamford Forum Note B Holder, as of the Closing Date, that:
(i) The Special Servicer is duly organized, validly existing and in
good standing as a corporation under the laws of the State of Florida, and
the Special Servicer is in compliance with the laws of each jurisdiction
in which any Mortgaged Property is located to the extent necessary to
perform its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Special
Servicer, and the performance and compliance with the terms of this
Agreement by the Special Servicer, do not violate the Special Servicer's
organizational documents or constitute a default (or an event that, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material agreement or other instrument to
which it is a party or that is applicable to it or any of its assets,
which default, in the Special Servicer's reasonable judgment, is likely to
materially and adversely effect either the ability of the Special Servicer
to perform its obligations under this Agreement or the financial condition
of the Special Servicer.
(iii) The Special Servicer has the full corporate power and
authority to enter into and consummate all transactions contemplated by
this Agreement, has duly authorized the execution, delivery and
performance of this Agreement, and has duly executed and delivered this
Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Special Servicer, enforceable against the
Special Servicer in accordance with the terms hereof, except as such
enforcement may be limited by (A) applicable bankruptcy, receivership,
insolvency, reorganization, liquidation, fraudulent transfer, moratorium
and other laws affecting the enforcement of creditors' rights generally,
and (B) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law.
(v) The Special Servicer is not in violation of, and its execution
and delivery of this Agreement and its performance and compliance with the
terms of this Agreement do not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Special Servicer's good faith and
reasonable judgment, is likely to affect materially and adversely either
the ability of the Special Servicer to perform its obligations under this
Agreement or the financial condition of the Special Servicer.
(vi) No litigation is pending or, to the best of the Special
Servicer's knowledge, threatened against the Special Servicer, the outcome
of which in the Special Servicer's reasonable judgment, is likely to
materially and adversely affect either the ability of the Special Servicer
to perform its obligations under this Agreement or the financial condition
of the Special Servicer.
(vii) Each officer or employee of the Special Servicer that has
responsibilities concerning the servicing and administration of the
Serviced Loans is covered by errors and omissions insurance in the amounts
and with the coverage required by Section 3.07(c).
(viii) No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or
body is required for the consummation by the Special Servicer of the
transactions contemplated herein, except for those consents, approvals,
authorizations and orders that previously have been obtained and those
filings and registrations that previously have been completed.
(b) The representations and warranties of the Special Servicer set
forth in Section 2.06(a) shall survive the execution and delivery of this
Agreement and inure to the benefit of the Persons for whose benefit they were
made for so long as the Trust remains in existence. Upon discovery by any of the
parties hereto of a breach of any of such representations and warranties that
materially and adversely affects the interests of the Certificateholders or any
party hereto, the party discovering such breach shall give prompt written notice
to each of the other parties hereto.
(c) Each successor Special Servicer (if any) shall be deemed to have
made, as of the date of its succession, each of the representations set forth in
Section 2.06(a), subject to such appropriate modifications to the representation
and warranty set forth in Section 2.06(a)(i) to accurately reflect such
successor's jurisdiction of organization and whether it is a corporation,
partnership, bank, association or other type of organization.
Section 2.07 Representations and Warranties of the Trustee and the
-----------------------------------------------------
REMIC Administrator.
--------------------
(a) Xxxxx Fargo Bank, N.A., both in its capacity as Trustee and in
its capacity as REMIC Administrator (the "Bank"), hereby represents and warrants
to the other parties hereto and for the benefit of the Certificateholders and
the One Stamford Forum Note B Holder, as of the Closing Date, that:
(i) The Bank is a national bank duly organized, validly existing and
in good standing under the laws of the United States and is, shall be or,
if necessary, shall appoint a co-trustee that is, in compliance with the
laws of each jurisdiction in which any Mortgaged Property is located to
the extent necessary to ensure the enforceability of each Loan and to
perform its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Bank, and
the performance and compliance with the terms of this Agreement by the
Bank, do not violate the Bank's organizational documents or constitute a
default (or an event that, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material
agreement or other instrument to which it is a party or that is applicable
to it or any of its assets, which default, in the Bank's good faith and
reasonable judgment, is likely to materially and adversely affect either
the ability of the Bank to perform its obligations under this Agreement or
the financial condition of the Bank.
(iii) The Bank has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Bank, enforceable against the Bank in
accordance with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, and (B) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) The Bank is not in violation of, and its execution and delivery
of this Agreement and its performance and compliance with the terms of
this Agreement will not constitute a violation of, any law, any order or
decree of any court or arbiter, or any order, regulation or demand of any
federal, state or local governmental or regulatory authority, which
violation, in the Bank's good faith and reasonable judgment, is likely to
affect materially and adversely either the ability of the Bank to perform
its obligations under this Agreement or the financial condition of the
Bank.
(vi) No litigation is pending or, to the best of the Bank's
knowledge, threatened against the Bank that would prohibit the Bank from
entering into this Agreement or, in the Bank's good faith and reasonable
judgment, is likely to materially and adversely affect either the ability
of the Bank to perform its obligations under this Agreement or the
financial condition of the Bank.
(vii) No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or
body is required for the consummation by the Bank of the transactions
contemplated herein, except for those consents, approvals, authorizations
and orders that previously have been obtained and those filings and
registrations that previously have been completed.
(b) The representations and warranties of the Bank set forth in
Section 2.07(a) shall survive the execution and delivery of this Agreement and
shall inure to the benefit of the Persons for whose benefit they were made for
so long as the Trust remains in existence. Upon discovery by any of the parties
hereto of a breach of any of such representations and warranties that materially
and adversely affects the interests of the Certificateholders or any party
hereto, the party discovering such breach shall give prompt written notice to
each of the other parties hereto.
(c) Each successor Trustee or REMIC Administrator (if any and
regardless of whether the Trustee and the REMIC Administrator are different
Persons) shall be deemed to have made, as of the date of its succession, each of
the representations set forth in Section 2.07(a), subject to such appropriate
modifications to the representation and warranty set forth in Section 2.07(a)(i)
to accurately reflect such successor's jurisdiction of organization and whether
it is a corporation, partnership, bank, association or other type of
organization. In any such case, the term "Bank" shall be deemed to mean such
successor Trustee or the REMIC Administrator, as appropriate.
Section 2.08 [RESERVED].
-----------
Section 2.09 Issuance of the Class R-I Certificates; Creation of the REMIC I
---------------------------------------------------------------
Regular Interests.
------------------
Concurrently with the assignment to the Trustee of the assets
included in REMIC I, and in exchange therefor, at the direction of the
Depositor, the REMIC I Regular Interests have been issued hereunder and the
Trustee has executed, authenticated and delivered to or upon the order of the
Depositor, in exchange for such assets, the Class R-I Certificates in authorized
denominations. The Class R-I Certificates, together with the REMIC I Regular
Interests, constitute the entire beneficial ownership of REMIC I. The rights of
the Class R-I Certificateholders and the Trustee for the benefit of REMIC II to
receive distributions from the proceeds of REMIC I in respect of the Class R-I
Certificates and the REMIC I Regular Interests, respectively, shall be as set
forth in this Agreement.
Section 2.10 Conveyance of REMIC I Regular Interests; Acceptance of
------------------------------------------------------
REMIC II by the Trustee.
------------------------
The Depositor, as of the Closing Date, and concurrently with the
execution and delivery hereof, does hereby assign without recourse all the
right, title and interest of the Depositor in and to the REMIC I Regular
Interests to the Trustee for the benefit of the Holders of the REMIC II
Certificates. The Trustee acknowledges the assignment to it of the REMIC I
Regular Interests and declares that it holds and will hold the same in trust for
the exclusive use and benefit of all present and future Holders of the REMIC II
Certificates.
Section 2.11 Issuance of the REMIC II Certificates.
--------------------------------------
Concurrently with the assignment to the Trustee of the REMIC I
Regular Interests, and in exchange therefor, at the direction of the Depositor,
the Trustee has executed, authenticated and delivered to or upon the order of
the Depositor, the REMIC II Certificates in authorized denominations. The
interests evidenced by the REMIC II Certificates constitute the entire
beneficial ownership of REMIC II. The rights of the Holders of the REMIC II
Certificates to receive distributions from the proceeds of REMIC II shall be as
set forth in this Agreement.
Section 2.12 Loss of Value Reserve Fund Provisions.
--------------------------------------
It is the intention of the parties hereto that any Loss of Value
Payments received by the Trust pursuant to Section 2.03(i), together with the
account(s) and/or sub-account(s) in which such amounts are to be held pursuant
to Section 3.04(g), shall collectively constitute an "outside reserve fund" for
federal income tax purposes designated as the "Loss of Value Reserve Fund" and
not an asset of any REMIC or the Grantor Trust. Furthermore, for all federal tax
purposes, the REMIC Administrator and the Special Servicer shall treat any
amounts transferred by a REMIC to the Loss of Value Reserve Fund as amounts
distributed by such REMIC to the Mortgage Loan Seller as beneficial owner of the
Loss of Value Reserve Fund. The Mortgage Loan Seller will be the beneficial
owner of the Loss of Value Reserve Fund for all federal income tax purposes, and
shall be taxable on all income earned thereon. The Trustee, by execution and
delivery hereof, acknowledges the assignment to it of the assets consisting of
the Loss of Value Reserve Fund, including the amounts held therein, and declares
that it or the REMIC Administrator on its behalf holds and will hold such
assets, through the Special Servicer, in accordance with Section 3.04(g), in
trust and for the benefit of the Certificateholders, as their interests may
appear.
Section 2.13 Designation of Grantor Trust.
-----------------------------
The Depositor, as of the Closing Date, and concurrently with the
execution and delivery hereof, does hereby assign without recourse all the
right, title and interest of the Depositor in and to the Excess Interest to the
Trustee for the benefit of the Holders of the Class V Certificates. The Trustee
acknowledges the assignment to it of the Excess Interest and declares that it
holds and will hold the same in trust for the exclusive use and benefit of all
present and future Holders of the Class V Certificates. Concurrently with the
assignment to the Trustee of the Excess Interest, and in exchange therefor, at
the direction of the Depositor, the Trustee has executed, authenticated and
delivered to or upon the order of the Depositor, the Class V Certificates in
authorized denominations. The Class V Certificates are hereby designated as
undivided beneficial interests in the portion of the Trust Fund consisting of
Excess Interest and the Excess Interest Distribution Account, which portion
shall be treated as a grantor trust within the meaning of subpart E, Part I of
subchapter J of the Code.
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
Section 3.01 Administration of the Serviced Loans.
-------------------------------------
(a) Each of the Master Servicer and the Special Servicer shall
service and administer the Serviced Loans and any REO Properties that it is
obligated to service and administer pursuant to this Agreement on behalf of the
Trustee, and in the best interests and for the benefit of the Certificateholders
and, in the case of the Serviced Whole Loan, on behalf of the One Stamford Forum
Note B Holder (as a collective whole taking into account the subordination of
the One Stamford Forum Note B) in accordance with any and all applicable laws,
the terms of this Agreement, the terms of the respective Serviced Loans and in
the case of the Serviced Whole Loan, the related Intercreditor Agreement, and,
to the extent consistent with the foregoing, in accordance with the Servicing
Standard. Without limiting the foregoing, and subject to Section 3.21, (i) the
Master Servicer shall service and administer all Performing Serviced Loans, and
(ii) the Special Servicer shall service and administer (x) each Serviced Loan
(other than a Corrected Serviced Loan) as to which a Servicing Transfer Event
has occurred and is continuing, and (y) each REO Property; provided, however,
that the Master Servicer shall continue to collect information and prepare all
reports to the Trustee required hereunder with respect to any Specially Serviced
Loans and REO Properties (and the related REO Serviced Loans), and further to
render such incidental services with respect to any Specially Serviced Loans and
REO Properties as are specifically provided for herein; and provided, further,
that the Special Servicer shall render such incidental services with respect to
Performing Serviced Loans as are specifically provided for herein. The Master
Servicer shall not, on behalf of the Trust, obtain title to a Mortgaged
Property.
(b) Subject to Section 3.01(a) the Master Servicer and the Special
Servicer shall each have full power and authority, acting alone or through
Sub-Servicers, to do or cause to be done any and all things in connection with
such servicing and administration that it may deem necessary or desirable.
Without limiting the generality of the foregoing, each of the Master Servicer
(with respect to Performing Serviced Loans and Corrected Serviced Loans) and the
Special Servicer (with respect to Specially Serviced Loans and REO Serviced
Loans), in its own name or in the name of the Trustee, is hereby authorized and
empowered by the Trustee to execute and deliver, on behalf of the
Certificateholders and if the Serviced Whole Loan is affected, the One Stamford
Forum Note B Holder, the Trustee or any of them: (i) any and all financing
statements, control agreements, continuation statements and other documents or
instruments necessary to perfect or maintain the lien created by any Mortgage or
other security document in the related Mortgage File on the related Mortgaged
Property and other related collateral; (ii) any and all instruments of
satisfaction or cancellation, or of partial or full release or discharge, and
all other comparable instruments; and (iii) subject to Sections 3.08 and 3.20,
any and all assumptions, modifications, waivers, substitutions, extensions,
amendments and consents. Subject to Section 3.10, the Trustee shall, at the
written request of a Servicing Officer of the Master Servicer or the Special
Servicer, furnish, or cause to be so furnished, to the Master Servicer or the
Special Servicer, as appropriate, any limited powers of attorney and other
documents (each of which shall be prepared by the Master Servicer or the Special
Servicer, as applicable) necessary or appropriate to enable it to carry out its
servicing and administrative duties hereunder; provided, that the Trustee shall
not be held liable for any misuse of any such power of attorney by the Master
Servicer or the Special Servicer and the Trustee will be indemnified pursuant
to, and subject to the limitations set forth in, Section 8.05 for any losses or
expenses it incurs due to the Master Servicer's use of such power of attorney.
(c) Notwithstanding anything contained herein to the contrary,
neither the Master Servicer nor the Special Servicer shall without the Trustee's
written consent: (i) initiate any action, suit or proceeding solely under the
Trustee's name without indicating the Master Servicer's or such Special
Servicer's, as applicable, representative capacity, or (ii) take any action with
the intent to cause, and that actually does cause, the Trustee to be registered
to do business in any state.
The Master Servicer and/or the Special Servicer shall indemnify the
Trustee for any and all costs, liabilities and expenses incurred by the Trustee
in connection with the negligent or willful misuse of such powers of attorney by
the Master Servicer or the Special Servicer, as applicable.
(d) The relationship of each of the Master Servicer and the Special
Servicer to the Trustee and, unless they are the same Person, each other under
this Agreement is intended by the parties to this Agreement to be that of an
independent contractor and not that of a joint venturer, partner or agent.
(e) The parties hereto acknowledge that the One Stamford Forum Note
A Mortgage Loan is subject to the terms and conditions of the related
Intercreditor Agreement. The parties hereto further recognize the rights and
obligations of the "Holders" under the One Stamford Forum Intercreditor
Agreement, including with respect to the allocation on or in respect of the One
Stamford Forum Whole Loan and the making of payments to the "Holders" in
accordance with Sections 3 and 4 of the One Stamford Forum Intercreditor
Agreement.
In the event that a Mortgage Loan included in the Serviced Whole
Loan is no longer part of the Trust Fund and the servicing and administration of
such Whole Loan is to be governed by a separate servicing agreement and not by
this Agreement, as contemplated by Section 6 of the One Stamford Forum
Intercreditor Agreement the Master Servicer and, if such Whole Loan is then
being specially serviced hereunder, the Special Servicer, shall continue to act
in such capacities under such separate servicing agreement, which agreement
shall be reasonably acceptable to the Master Servicer and/or the Special
Servicer, as the case may be, and shall contain servicing and administration,
limitation of liability, indemnification and servicing compensation provisions
substantially similar to the corresponding provisions of this Agreement, except
for the fact that such Whole Loan and the related Mortgaged Properties shall be
the sole assets serviced and administered thereunder and the sole source of
funds thereunder.
Notwithstanding the foregoing, if, at such time as a Mortgage Loan
included in the Serviced Whole Loan shall no longer be part of the Trust Fund, a
separate servicing agreement with respect to such Whole Loan has not been
entered into, then, until such time as a separate servicing agreement is entered
into and any required rating confirmation is obtained, and notwithstanding that
such Mortgage Loan is no longer part of the Trust Fund, the Master Servicer and,
if applicable, the Special Servicer shall continue to service such Whole Loan or
any related REO Property, as the case may be, under this Agreement as if it were
a separate servicing agreement, for the benefit of the parties under the related
Intercreditor Agreement, with: (i) such Whole Loan and the related Mortgaged
Property constituting the sole assets thereunder; (ii) references to the
"Trustee", "Trust" and "Certificateholders" (or any sub-group thereof) being
construed to refer to the new "A Noteholder" or its equivalent under the related
Intercreditor Agreement, as applicable; and (iii) references to the "Directing
Certificateholder" or its equivalent being construed to refer to the "One
Stamford Forum Controlling Holder" or its equivalent under the related
Intercreditor Agreement; provided, however, that from and after the date that
such Mortgage Loan is no longer part of the Trust Fund and until the servicing
and administration of such Whole Loan is to be governed by a separate servicing
agreement and not by this Agreement, and notwithstanding any other provision
hereof, (i) no P&I Advances shall be made by the Master Servicer, Special
Servicer or the Trustee in respect of such Mortgage Loan, and (ii) the holders
of such Whole Loan shall be solely responsible for all fees, costs, expenses,
liabilities, indemnities and other amounts payable or reimbursable to any Person
in respect of such Mortgage Loan and any related REO Property and in no event
shall any such fees, costs, expenses, liabilities, indemnities, or other amounts
be payable out of the Mortgage Pool or any collections relating thereto (except
to the extent accrued and unpaid while such Mortgage Loan was included as part
of the Trust Fund). Subject to any express provision contained in the related
Intercreditor Agreement to the contrary, nothing herein shall be deemed to
override the provisions of an Intercreditor Agreement with respect to the rights
of the One Stamford Forum Note B Holder thereunder. With respect to the
servicing and administration duties and obligations with respect to the Serviced
Whole Loan, in the event of any inconsistency between the provisions of an
Intercreditor Agreement and the provisions of this Agreement, or as to any
matter on which such Intercreditor Agreement is silent or makes reference to
this Agreement, this Agreement shall govern.
Section 3.02 Collection of Mortgage Loan Payments.
-------------------------------------
(a) The Master Servicer (with respect to Performing Serviced Loans)
and the Special Servicer (with respect to Specially Serviced Loans) shall
undertake reasonable efforts to collect all payments called for under the terms
and provisions of the Serviced Loans and shall follow such collection procedures
as are consistent with applicable law, the express terms of this Agreement and
the related loan documents and, to the extent consistent with the foregoing, the
Servicing Standard, provided that neither the Master Servicer nor the Special
Servicer shall, with respect to any ARD Loan after its Anticipated Repayment
Date, take any enforcement action with respect to the payment of Excess Interest
(other than the making of requests for its collection), unless (i) the taking of
an enforcement action with respect to the payment of other amounts due under
such Serviced Loan is, in the good faith and reasonable judgment of the Special
Servicer, and without regard to such Excess Interest, also necessary,
appropriate and consistent with the Servicing Standard or (ii) all other amounts
due under such Loan have been paid, the payment of such Excess Interest has not
been forgiven in accordance with Section 3.20 and, in the good faith and
reasonable judgment of the Special Servicer, the Liquidation Proceeds expected
to be recovered in connection with such enforcement action will cover the
anticipated costs of such enforcement action and, if applicable, any associated
Advance Interest. Consistent with the foregoing, the Special Servicer (as to
Specially Serviced Loans) may waive any Default Charges in connection with any
specific delinquent payment on a Serviced Loan it is obligated to service
hereunder. Consistent with the foregoing and in each case subject to the
Servicing Standard, the Master Servicer (or if applicable a Sub-Servicer) may
grant a one time waiver of Default Charges in connection with a late payment,
provided that for any waiver thereafter of Default Charges in connection with a
Serviced Loan that is 30 days or more past due, and with respect to which
Advances, Advance Interest or Additional Trust Fund Expenses have been incurred
and remain unreimbursed to the Trust, the Master Servicer must obtain the
consent of the Directing Certificateholder before granting such waiver subject
to the obligation of the Master Servicer to act in accordance with applicable
law and the Servicing Standard. The Directing Certificateholder's consent shall
be deemed granted if it has not responded in writing (which may be via fax or
e-mail) within ten Business Days of its receipt of such request.
(b) (i) At least 90 days prior to the maturity date of each Balloon
Loan that is included in the Trust Fund, the Master Servicer shall send a notice
to the related Mortgagor of such maturity date (with a copy to be sent to the
Special Servicer) and shall request written confirmation that the Balloon
Payment will be paid by such maturity date.
(ii) Within 60 days after the Closing Date (or within such shorter
period as may be required by the applicable Letter of Credit), the Master
Servicer shall notify each provider of a Letter of Credit for any Serviced
Loan that the Master Servicer or the Special Servicer, on behalf of the
Trustee for the benefit of the Certificateholders, shall be the
beneficiary under each such Letter of Credit. The Master Servicer shall
maintain and execute each such Letter of Credit, if applicable, in
accordance with the related loan documents.
(iii) Within 60 days after the later of (A) the Closing Date as to
each Serviced Loan that is secured by the interest of the related
Mortgagor under a Ground Lease (or within such shorter period as may be
required by the applicable Ground Lease) and (B) the Master Servicer's
receipt of a copy of the related Ground Lease, the Master Servicer shall
notify the related ground lessor of the transfer of such Mortgage Loan to
the Trust pursuant to this Agreement and inform such ground lessor that
any notices of default under the related Ground Lease should thereafter be
forwarded to the Master Servicer.
All amounts received by the Trust with respect to a Whole Loan shall
be applied to amounts due and owing thereunder (including for principal and
accrued and unpaid interest) in accordance with the express provisions of this
Agreement, the related Mortgage Notes, the related Mortgage, the related loan
agreement, if any, and the related Intercreditor Agreement.
Section 3.03 Collection of Taxes, Assessments and Similar Items;
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Servicing Account; Servicing Advances; Reserve Accounts.
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(a) The Master Servicer shall, as to all the Serviced Loans,
establish and maintain one or more accounts (each a "Servicing Account"), into
which all Escrow Payments received by it with respect to the Serviced Loans
shall be deposited and retained. Subject to any terms of the related loan
documents that specify the nature of the account in which Escrow Payments shall
be held, each Servicing Account shall be an Eligible Account. Withdrawals of
amounts so collected in respect of any Serviced Loan (and interest earned
thereon) from a Servicing Account may be made only: (i) to effect payment of
real estate taxes, assessments, insurance premiums, ground rents (if applicable)
and comparable items in respect of related Mortgaged Property; (ii) to reimburse
the Master Servicer, the Special Servicer or the Trustee, as applicable, for any
unreimbursed Servicing Advances made thereby to cover any of the items described
in the immediately preceding clause (i); (iii) to refund to the related
Mortgagor any sums as may be determined to be overages; (iv) to pay interest or
other income, if required and as described below, to the related Mortgagor on
balances in the Servicing Account (or, if and to the extent not payable to the
related Mortgagor, to pay such interest or other income (up to the amount of any
Net Investment Earnings in respect of such Servicing Account for each Collection
Period) to the Master Servicer); (v) disburse Insurance Proceeds if required to
be applied to the repair or restoration of the related Mortgaged Property; or
(vi) to clear and terminate the Servicing Account at the termination of this
Agreement in accordance with Section 9.01. The Master Servicer shall pay or
cause to be paid to the related Mortgagor interest, if any, earned on the
investment of funds in a Servicing Account maintained thereby, if required by
law or the terms of the related Serviced Loan. If the Master Servicer shall
deposit into a Servicing Account any amount not required to be deposited
therein, it may at any time withdraw such amount from such Servicing Account,
any provision herein to the contrary notwithstanding. The Special Servicer shall
within two Business Days after receipt deliver all Escrow Payments received by
it to the Master Servicer for deposit into the applicable Servicing Account.
(b) The Master Servicer shall as to each Serviced Loan, including
each Specially Serviced Loan, (i) maintain accurate records with respect to the
related Mortgaged Property reflecting the status of real estate taxes,
assessments and other similar items that are or may become a lien thereon and
the status of insurance premiums and any ground rents payable in respect thereof
and (ii) use reasonable efforts consistent with the Servicing Standard to
obtain, from time to time, all bills for the payment of such items (including
renewal premiums) and effect payment thereof prior to the applicable penalty or
termination date. For purposes of effecting any such payment, the Master
Servicer shall apply Escrow Payments as allowed under the terms of the related
loan documents; provided that if such Serviced Loan does not require the related
Mortgagor to escrow for the payment of real estate taxes, assessments, insurance
premiums, ground rents (if applicable) and similar items, each of the Master
Servicer and the Special Servicer shall use reasonable efforts, as to those
Serviced Loans it is obligated to service hereunder, and subject to and in
accordance with the Servicing Standard, enforce the requirement of the related
Mortgage that the Mortgagor make payments in respect of such items at the time
they first become due.
(c) In accordance with the Servicing Standard and for all Serviced
Loans, but subject to Section 3.11(h), the Master Servicer shall make a
Servicing Advance with respect to each Mortgaged Property (including each
Mortgaged Property relating to a Specially Serviced Loan) all such funds as are
necessary for the purpose of effecting the timely payment of (i) real estate
taxes, assessments and other similar items, (ii) ground rents (if applicable),
and (iii) premiums on Insurance Policies, in each instance prior to the
applicable penalty or termination date if and to the extent that (x) Escrow
Payments (if any) collected from the related Mortgagor are insufficient to pay
such item when due, and (y) the related Mortgagor has failed to pay such item on
a timely basis; provided that, in the case of amounts described in the preceding
clause (i), the Master Servicer shall not make a Servicing Advance of any such
amount until the Master Servicer (in accordance with the Servicing Standard) has
actual knowledge that the Mortgagor has not made such payments and reasonably
anticipates that such amounts will not be paid by the related Mortgagor on or
before the applicable penalty date. All such Advances shall be reimbursable in
the first instance from related collections from the Mortgagor and further as
provided in Section 3.05. No costs incurred by the Master Servicer in effecting
the payment of real estate taxes, assessments and, if applicable, ground rents
on or in respect of such Mortgaged Properties shall, for purposes hereof,
including calculating monthly distributions to Certificateholders, be added to
the respective unpaid principal balances or Stated Principal Balances of the
related Serviced Loans, notwithstanding that the terms of such Serviced Loans so
permit; provided that this sentence shall not be construed to limit the rights
of the Master Servicer on behalf of the Trust or, if the Serviced Whole Loan is
involved, on behalf of the One Stamford Forum Note B Holder, to enforce any
obligations of the related Mortgagor under such Serviced Loan.
(d) The Master Servicer shall establish and maintain, as applicable,
one or more accounts (the "Reserve Accounts"), in which all Reserve Funds, if
any, received by it with respect to the Serviced Loans shall be deposited and
retained. As and to the extent consistent with the Servicing Standard and the
related loan documents, the Master Servicer may make withdrawals of amounts so
deposited, and draws under any Letter of Credit delivered in lieu of Reserve
Funds, to pay for, or to reimburse the related Mortgagor in connection with, the
costs associated with the related tenant improvements, leasing commissions,
repairs, replacements, capital improvements and/or environmental testing and
remediation, litigation and/or other special expenses at or with respect to the
related Mortgaged Property for which such Reserve Funds were intended or such
Letter of Credit was delivered and, in the case of a Reserve Fund constituting
debt service reserve accounts, to apply amounts on deposit therein in respect of
principal and interest on the related Serviced Loan. In addition, as and to the
extent consistent with the Servicing Standard and the related loan documents,
the Master Servicer may make withdrawals of amounts so deposited, and draws
under any Letter of Credit so delivered, to prepay the Serviced Loan in the
event certain leasing or other economic criteria are not satisfied at the
related Mortgaged Property (but only if such prepayment is required by the
related loan documents or continuing to hold such funds or Letter of Credit as
Additional Collateral is not consistent with the Servicing Standard), or to
release such amounts to the related Mortgagor or otherwise apply such amounts
for any other appropriate purpose in the event that such criteria are satisfied,
and the Master Servicer may return any Letter of Credit so delivered to the
related Mortgagor. Subject to the terms of the related loan documents, each
Reserve Account shall be an Eligible Account. Interest and other income, if any,
earned on funds on deposit in any Reserve Account held by the Master Servicer
(to the extent of any Net Investment Earnings with respect to such Reserve
Account for any Collection Period), shall be for the benefit of and payable to
the Master Servicer, unless otherwise required to be paid to the related
Mortgagor by law or the terms of the related Serviced Loan. Any out-of-pocket
expenses incurred by the Master Servicer to enable the Master Servicer to make
any draw under any Letter of Credit shall constitute a Servicing Advance, and
the Master Servicer shall make reasonable efforts to recover such expenses from
the related Mortgagor to the extent the Mortgagor is required to pay such
expenses under the terms of the related loan documents.
(e) To the extent an operations and maintenance plan is required to
be established and executed pursuant to the terms of a Serviced Loan, the Master
Servicer shall request from the Mortgagor written confirmation thereof within a
reasonable time after the later of the Closing Date and the date as of which
such plan is required to be established or completed. To the extent any repairs,
capital improvements, actions or remediations are required to have been taken or
completed pursuant to the terms of the Serviced Loan, the Master Servicer shall
request from the Mortgagor written confirmation of such actions and remediations
within a reasonable time after the later of the Closing Date and the date as of
which such action or remediations are required by the related loan documents to
be or to have been taken or completed. To the extent a Mortgagor shall fail to
promptly respond to any inquiry described in this Section 3.03(e), the Master
Servicer shall determine whether the related Mortgagor has failed to perform its
obligations under the related Serviced Loan and report any such failure to the
Special Servicer, the Trustee, the One Stamford Forum Note B Holder (if the
Serviced Whole Loan is involved), and the Directing Certificateholder within a
reasonable time after the date as of which such actions or remediations are
required to be or to have been taken or completed. The Master Servicer shall
promptly give written notice to the Trustee, the Special Servicer, the One
Stamford Forum Note B Holder (if the Serviced Whole Loan is involved), and the
Directing Certificateholder if the Master Servicer shall determine that any
Mortgagor has failed to perform its obligations under the related loan documents
in respect of environmental matters.
Section 3.04 Certificate Account, Distribution Account, REMIC I
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Distribution Account, REMIC II Distribution Account, Excess Interest
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Distribution Account, Excess Liquidation Proceeds Account, the Interest Reserve
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Account and Serviced Whole Loan Custodial Account.
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(a) The Master Servicer shall segregate and hold all funds collected
and received by it in connection with the Mortgage Pool separate and apart from
its own funds and general assets. The Master Servicer shall establish and
maintain one or more accounts (collectively, the "Certificate Account"), held on
behalf of the Trustee in trust for the benefit of the Certificateholders. The
Certificate Account shall be an Eligible Account. The Master Servicer shall
deposit or cause to be deposited into the Certificate Account, within one
Business Day of receipt (in the case of payments by Mortgagors or other
collections on or in respect of the Mortgage Loans) or as otherwise required
hereunder, the following payments and collections received or made by or on
behalf of it subsequent to the Cut-off Date (other than in respect of principal,
interest, Escrow Payments and any other amounts due and payable on the Mortgage
Loans on or before the Cut-off Date, which payments shall be delivered promptly
to the Mortgage Loan Seller or its related designee, with negotiable instruments
endorsed as necessary and appropriate without recourse):
(i) all payments, from whatever source, or transfers from a debt
service reserve account, on account of principal, including Principal
Prepayments, on the Mortgage Loans;
(ii) all payments, from whatever source, or transfers from a debt
service reserve account, on account of interest on the Mortgage Loans
including Default Interest and Excess Interest;
(iii) all Prepayment Premiums received in respect of the Mortgage
Loans;
(iv) all payments, Insurance Proceeds, Condemnation Proceeds and
Liquidation Proceeds received in respect of the Mortgage Loans together
with any amounts representing recoveries of Workout-Delayed Reimbursement
Amounts or Nonrecoverable Advances in respect of the related Mortgage
Loans;
(v) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.06 in connection with losses incurred with respect
to Permitted Investments of funds held in the Certificate Account;
(vi) any amounts required to be deposited by the Master Servicer or
the Special Servicer pursuant to Section 3.07(b) in connection with losses
resulting from a deductible clause in a blanket or master single insurance
policy;
(vii) any amounts required to be transferred to the Certificate
Account from the REO Account pursuant to Section 3.16(c);
(viii) any amounts representing payments made by Mortgagors that are
allocable to cover items in respect of which Servicing Advances have been
made;
(ix) any proceeds from the repurchase or substitution of Mortgage
Loans under Section 2.03;
(x) insofar as they do not constitute Escrow Payments, any amounts
paid by a Mortgagor specifically to cover items for which a Servicing
Advance has been made or that represent a recovery of property protection
expenses from a Mortgagor; and
(xi) any Loss of Value Payments, as set forth in Section 3.05(g);
provided that any amounts described above (other than clause (v) above) that
relate to the Serviced Whole Loan or any related REO Property (other than
Liquidation Proceeds derived from the sale of the Mortgage Loan pursuant to
Section 3.18 to or through the One Stamford Forum Note B Holder pursuant to the
related Intercreditor Agreement) shall be deposited into the Serviced Whole Loan
Custodial Account, and, in any such case, shall thereafter be transferred as
provided in Section 3.05(f).
The foregoing requirements for deposit into the Certificate Account
shall be exclusive. Without limiting the generality of the foregoing, actual
payments from Mortgagors in the nature of Escrow Payments, Reserve Funds, late
payment charges, assumption fees, assumption application fees, earnout fees,
extension fees, substitution fees, modification fees, charges for beneficiary
statements or demands and amounts collected for checks returned for insufficient
funds, need not be deposited by the Master Servicer in the Certificate Account.
The Master Servicer shall promptly deliver to the Special Servicer any of the
foregoing items received by it, if and to the extent that such items constitute
Additional Special Servicing Compensation payable to the Special Servicer. If
the Master Servicer shall deposit into the Certificate Account any amount not
required to be deposited therein, it may at any time withdraw such amount from
the Certificate Account, any provision herein to the contrary notwithstanding.
Upon receipt of any of the amounts described in clauses (i) through
(iv) and (viii) above with respect to any Serviced Loan (for the avoidance of
doubt, not including any REO Serviced Loan), the Special Servicer shall
promptly, but in no event later than one Business Day after receipt of available
funds, remit such amounts to the Master Servicer for deposit into the
Certificate Account in accordance with the second preceding paragraph, unless
the Special Servicer determines, consistent with the Servicing Standard, that a
particular item should not be deposited because of a restrictive endorsement.
Any such amounts received by the Special Servicer with respect to an REO
Property (other than an REO Property related to the Serviced Whole Loan) shall
be deposited by the Special Servicer into the REO Account and remitted to the
Master Servicer for deposit into the Certificate Account pursuant to Section
3.16(c). With respect to any such amounts paid by check to the order of the
Special Servicer, the Special Servicer shall endorse such check to the order of
the Master Servicer unless the Special Servicer determines, consistent with the
Servicing Standard, that a particular item cannot be so endorsed and delivered
because of a restrictive endorsement.
(b) The Trustee shall establish and maintain one or more trust
accounts (collectively, the "Distribution Account") to be held in trust for the
benefit of the Trust as holder of and the REMIC I Regular Interests, and for the
Certificateholders. The Distribution Account shall be an Eligible Account. On or
prior to 1:00 p.m. New York City time on each Master Servicer Remittance Date,
the Master Servicer shall deliver to the Trustee, for deposit into the
Distribution Account, an aggregate amount of immediately available funds equal
to the Master Servicer Remittance Amount for such Master Servicer Remittance
Date. If, at 3:00 p.m., New York City time, on any Master Servicer Remittance
Date, the Trustee has not received the Master Servicer Remittance Amount, the
Trustee shall provide notice to the Master Servicer in the same manner as
required by Section 4.03(a) with respect to P&I Advances.
In the event that the Master Servicer fails to remit the Master
Servicer Remittance Amount for such Master Servicer Remittance Date on the
related Master Servicer Remittance Date, the Master Servicer shall pay to the
Trustee interest at the Reimbursement Rate on the Master Servicer Remittance
Amount for the period from and including such Master Servicer Remittance Date to
but excluding the date on which the Master Servicer Remittance Amount is
actually received by the Trustee.
In addition, the Master Servicer shall, as and when required
hereunder, deliver to the Trustee for deposit into the Distribution Account:
(i) any P&I Advances required to be made by the Master Servicer in
accordance with Section 4.03(a);
(ii) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.19(e) in connection with Prepayment Interest
Shortfalls; and
(iii) any Liquidation Proceeds paid by the Master Servicer or a
Majority Certificateholder of the Controlling Class in connection with the
purchase of all of the Mortgage Loans and any REO Properties pursuant to
Section 9.01, exclusive of the portion of such Liquidation Proceeds
required to be deposited into the Certificate Account pursuant to Section
9.01.
The Trustee shall, upon receipt, deposit into the Distribution
Account any and all amounts received or advanced by the Trustee that are
required by the terms of this Agreement to be deposited therein.
All such amounts deposited in respect of the Mortgage Loans (other
than Excess Interest, if any) shall, on each Distribution Date, be deemed to be
deposited into the REMIC I Distribution Account in respect of such Mortgage
Loans. All such amounts deposited in respect of such Excess Interest shall be
deemed to be deposited into the Excess Interest Distribution Account.
(c) (i) The Trustee shall establish and maintain the REMIC I
Distribution Account, as a sub-account of the Distribution Account, in the name
of the Trustee, in trust for the benefit of the Certificateholders (other than
Holders of the Class V Certificates). The REMIC I Distribution Account shall be
established and maintained as an Eligible Account or as a sub-account of the
Distribution Account. With respect to each Distribution Date, the Trustee shall
withdraw or be deemed to withdraw from the REMIC I Distribution Account and
deposit or be deemed to deposit into the REMIC II Distribution Account on or
before such date the amount of the Available Distribution Amount (including P&I
Advances) and Prepayment Premiums to be distributed in respect of the REMIC I
Regular Interests pursuant to Section 4.01(a)(i) and Section 4.01(c)(iv) on such
date.
(ii) The Trustee shall establish and maintain the REMIC II
Distribution Account, as a sub-account of the Distribution Account, in the
name of the Trustee, in trust for the benefit of the REMIC II
Certificateholders. The REMIC II Distribution Account shall be established
and maintained as an Eligible Account or as a sub-account of the
Distribution Account. With respect to each Distribution Date, the Trustee
shall withdraw or be deemed to withdraw from the REMIC II Distribution
Account the amount of the Available Distribution Amount (including P&I
Advances) and Prepayment Premiums to be distributed in respect of the
REMIC II Certificates pursuant to Section 4.01(b) and Section 4.01(c)(i)
on such date.
(iii) [RESERVED].
(iv) The Trustee shall establish and maintain one or more accounts
or sub-accounts (collectively, the "Excess Liquidation Proceeds Account")
in the name of the Trustee, in trust for the benefit of the
Certificateholders. Each account that constitutes the Excess Liquidation
Proceeds Account shall be an Eligible Account. On each Master Servicer
Remittance Date, the Master Servicer shall withdraw from the Certificate
Account and remit to the Trustee for deposit into the Excess Liquidation
Proceeds Account all Excess Liquidation Proceeds received during the
Collection Period ending on the Business Day prior to such Master Servicer
Remittance Date.
(v) The Trustee shall establish and maintain one or more accounts or
sub-accounts (collectively, the "Excess Interest Distribution Account"),
in the name of the Trustee, in trust for the benefit of the Class V
Certificateholders. Each account that constitutes the Excess Interest
Distribution Account shall be an Eligible Account. On each Master Servicer
Remittance Date, the Master Servicer shall withdraw from the Certificate
Account and remit to the Trustee for deposit into the Excess Interest
Distribution Account all Excess Interest received during the Collection
Period ending on the Business Day prior to such Master Servicer Remittance
Date.
(d) Funds in the Certificate Account may be invested only in
Permitted Investments in accordance with the provisions of Section 3.06. The
Master Servicer shall give notice to the other parties hereto of the location of
the Certificate Account as of the Closing Date and of the new location of the
Certificate Account prior to any change thereof. The Distribution Account, the
REMIC I Distribution Account, the REMIC II Distribution Account, the Excess
Interest Distribution Account and the Excess Liquidation Proceeds Account shall
be established at the Corporate Trust Office of the Trustee as of the Closing
Date, and the Trustee shall give notice to the other parties hereto of the new
location of the Distribution Account, the REMIC I Distribution Account, the
REMIC II Distribution Account, the Excess Interest Distribution Account and the
Excess Liquidation Proceeds Account prior to any change thereof. Funds in the
Excess Interest Distribution Account, if established, and the Excess Liquidation
Proceeds Account, if established, shall remain uninvested.
(e) The Master Servicer shall establish and maintain one or more
Serviced Whole Loan Custodial Accounts in which the Master Servicer shall
deposit or cause to be deposited within one Business Day of receipt (in the case
of payments by Mortgagors or other collections on or in respect of the Serviced
Whole Loan) or as otherwise required hereunder, the following payments and
collections received or made by or on behalf of it subsequent to the Cut-off
Date (other than in respect of principal, interest and any other amounts due and
payable on such Whole Loan on or before the Cut-off Date, which payments shall
be held as provided in the related Intercreditor Agreement):
(i) all payments, from whatever source, or transfers from a debt
service reserve account, on account of principal, including Principal
Prepayments, on the Serviced Whole Loan;
(ii) all payments, from whatever source, or transfers from a debt
service reserve account, on account of interest on such Whole Loan;
(iii) all Prepayment Premiums received in respect of such Whole
Loan;
(iv) all payments, Insurance Proceeds, Condemnation Proceeds and
Liquidation Proceeds received in respect of the Serviced Whole Loan,
together with any amounts representing recoveries of Workout-Delayed
Reimbursement Amounts or Nonrecoverable Advances in respect of the
Serviced Whole Loan;
(v) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.06 in connection with losses incurred with respect
to Permitted Investments of funds held in the Serviced Whole Loan
Custodial Account;
(vi) any amounts required to be deposited by the Master Servicer or
the Special Servicer pursuant to Section 3.07(b) in connection with losses
with respect to the Serviced Whole Loan resulting from a deductible clause
in a blanket or master single insurance policy;
(vii) any amounts required to be transferred from the related REO
Account pursuant to Section 3.16(c);
(viii) any amounts representing payments made by Mortgagors that are
allocable to cover items in respect of which Servicing Advances have been
made; and
(ix) insofar as they do not constitute Escrow Payments, any amounts
paid by the related Mortgagor with respect to the Serviced Whole Loan
specifically to cover items for which a Servicing Advance has been made or
that represent a recovery of property protection expenses from a
Mortgagor.
The foregoing requirements for deposit into the Serviced Whole Loan
Custodial Accounts shall be exclusive. Without limiting the generality of the
foregoing, actual payments from Mortgagors in the nature of Escrow Payments,
Reserve Funds, assumption fees, assumption application fees, earnout fees,
extension fees, substitution fees, modification fees, charges for beneficiary
statements or demands and amounts collected for checks returned for insufficient
funds, need not be deposited by the Master Servicer in the Serviced Whole Loan
Custodial Accounts. The Master Servicer shall promptly deliver to the Special
Servicer any of the foregoing items received by it, if and to the extent that
such items constitute Additional Special Servicing Compensation payable to the
Special Servicer. If the Master Servicer shall deposit into the Serviced Whole
Loan Custodial Account any amount not required to be deposited therein, it may
at any time withdraw such amount from the Serviced Whole Loan Custodial Account,
any provision herein to the contrary notwithstanding.
Notwithstanding the foregoing or any other provision to the contrary
in this Agreement, the Master Servicer may maintain the Certificate Account and
the respective Serviced Whole Loan Custodial Accounts as multiple separate
sub-accounts of a single Eligible Account; provided that: (i) all deposits into
and withdrawals from such single Eligible Account shall be made in the same
manner as would be the case if the Certificate Account and the respective
Serviced Whole Loan Custodial Accounts were maintained as multiple separate
accounts; (ii) all distributions on the Certificates will be calculated and made
in the same manner as would be the case if the Certificate Account and the
respective Serviced Whole Loan Custodial Accounts were maintained as multiple
separate accounts; (iii) the Master Servicer shall make credits and debits to
those multiple sub-accounts in a manner consistent with the provisions of this
Agreement governing deposits and withdrawals of funds to and from the
Certificate Account and the respective Serviced Whole Loan Custodial Accounts,
respectively; (iv) the Master Servicer's maintaining the Certificate Account and
the respective Serviced Whole Loan Custodial Accounts as multiple separate
sub-accounts of a single Eligible Account (as opposed to in the form of multiple
separate Eligible Accounts) shall not adversely affect any of the
Certificateholders or the One Stamford Forum Note B Holder; and (v) such single
Eligible Account shall be entitled substantially as follows: "Bank of America,
National Association, as Master Servicer, in trust for the registered holders of
Banc of America Commercial Mortgage Inc., Commercial Mortgage Pass-Through
Certificates, Series 2006-3, and the respective One Stamford Forum Note B
Holder, as their interests may appear, Certificate/Custodial Account".
Upon receipt of any of the amounts described in clauses (i) through
(iv) and (viii) above with respect to the Serviced Whole Loan (for the avoidance
of doubt, not including any REO Serviced Loan), the Special Servicer shall
promptly, but in no event later than one Business Day after receipt of available
funds, remit such amounts to the Master Servicer for deposit into the applicable
Serviced Whole Loan Custodial Account in accordance with the second preceding
paragraph, unless the Special Servicer determines, consistent with the Servicing
Standard, that a particular item should not be deposited because of a
restrictive endorsement. Any such amounts received by the Special Servicer with
respect to an REO Property (other than an REO Property that is not related to
the Serviced Whole Loan) shall be deposited by the Special Servicer into the
related REO Account and remitted to the Master Servicer for deposit into the
Serviced Whole Loan Custodial Account pursuant to Section 3.16(c). With respect
to any such amounts paid by check to the order of the Special Servicer, the
Special Servicer shall endorse such check to the order of the Master Servicer
unless the Special Servicer determines, consistent with the Servicing Standard,
that a particular item cannot be so endorsed and delivered because of a
restrictive endorsement.
Funds in the Serviced Whole Loan Custodial Account may be invested
only in Permitted Investments in accordance with the provisions of Section 3.06.
The Master Servicer shall give notice to the Trustee, the Special Servicer, the
Depositor and the One Stamford Forum Note B Holder, of the location of each
Serviced Whole Loan Custodial Account as of the Closing Date and of the new
location of the Serviced Whole Loan Custodial Account prior to any change
thereof.
(f) The Master Servicer shall establish and maintain the Interest
Reserve Account in trust for the benefit of the Certificateholders. The Master
Servicer is hereby authorized to make deposits in and withdrawals from the
Interest Reserve Account, in accordance with the terms of this Agreement. The
Interest Reserve Account shall be maintained as a segregated account separate
from other accounts.
(g) If any Loss of Value Payments are received in connection with a
Material Defect or Material Breach, as the case may be, pursuant to or as
contemplated by Section 2.03(i), the Special Servicer shall establish and
maintain one or more non-interest bearing accounts (collectively, the "Loss of
Value Reserve Fund") to be held in trust for the benefit of the
Certificateholders, for purposes of holding such Loss of Value Payments. Each
account that constitutes the Loss of Value Reserve Fund shall be an Eligible
Account or a sub-account of an Eligible Account. The Special Servicer shall,
upon receipt, deposit in the Loss of Value Reserve Fund all Loss of Value
Payments received by it.
Section 3.05 Permitted Withdrawals From the Certificate Account, the
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Distribution Account, the Serviced Whole Loan Custodial Accounts and the Excess
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Liquidation Proceeds Account.
-----------------------------
(a) The Master Servicer may, from time to time, make withdrawals
from the Certificate Account for any of the following purposes (the order set
forth below not constituting an order of priority for such withdrawals):
(i) to remit to the Trustee no later than 1:00 p.m. (New York time)
for deposit into the Distribution Account and the Excess Interest
Distribution Account, the Master Servicer Remittance Amount for, and, to
the extent permitted or required by Section 4.03(a), as applicable, any
P&I Advances to be made on, each Master Servicer Remittance Date;
(ii) to reimburse the Master Servicer or the Trustee, as applicable,
for xxxxxxxxxxxx X&X Advances made thereby (in each case, with its own
funds), the Master Servicer's and the Trustee's, as the case may be,
respective rights to reimbursement pursuant to this clause (ii) with
respect to any P&I Advance (other than Nonrecoverable P&I Advances, which
are reimbursable pursuant to clause (vii) below) being limited to amounts
that represent Late Collections of interest and principal received in
respect of the particular Mortgage Loan or REO Serviced Loan as to which
such P&I Advance was made (net of related Master Servicing Fees and/or
Workout Fees) (exclusive of each Mortgage Loan or REO Serviced Loan
included in the Serviced Whole Loan to the extent such reimbursement was
paid out of collections from the Serviced Whole Loan Custodial Account);
(iii) to pay to the Master Servicer earned and unpaid Master
Servicing Fees in respect of each Mortgage Loan and REO Serviced Loan
(exclusive of each Mortgage Loan or REO Serviced Loan included in the
Serviced Whole Loan to the extent such payment was paid out of collections
from the Serviced Whole Loan Custodial Account), the Master Servicer's
right to payment pursuant to this clause (iii) with respect to any
Mortgage Loan or REO Serviced Loan (exclusive of each Mortgage Loan or REO
Serviced Loan included in the Serviced Whole Loan to the extent such
payment was paid out of collections from the Serviced Whole Loan Custodial
Account) being payable from, and limited to, amounts received on or in
respect of such Mortgage Loan (whether in the form of payments,
Liquidation Proceeds, Condemnation Proceeds or Insurance Proceeds) or such
REO Serviced Loan (whether in the form of REO Revenues, Liquidation
Proceeds or Insurance Proceeds) that are allocable as a recovery of
interest thereon;
(iv) to pay to the Special Servicer, out of general collections on
the Mortgage Loans and any REO Properties, earned and unpaid Special
Servicing Fees in respect of each Specially Serviced Loan and REO Serviced
Loan (exclusive of the One Stamford Forum Note B);
(v) to pay to the Special Servicer earned and unpaid Workout Fees
and Liquidation Fees to which it is entitled pursuant to, and from the
sources contemplated by Section 3.11(c);
(vi) to reimburse itself, the Special Servicer or the Trustee, as
applicable, for any unreimbursed Servicing Advances made thereby (in each
case, with its own funds), the Master Servicer's, the Trustee's or the
Special Servicer's, as the case may be, respective rights to reimbursement
pursuant to this clause (vi) with respect to any Servicing Advance (other
than Nonrecoverable Servicing Advances, which are reimbursable pursuant to
clause (vii) below) being limited to (A) payments made by the related
Mortgagor that are allocable to cover the item in respect of which such
Servicing Advance was made, and (B) Insurance Proceeds, Condemnation
Proceeds, Liquidation Proceeds and, if applicable, REO Revenues received
in respect of the particular Mortgage Loan or REO Property (exclusive of
each Mortgage Loan or REO Serviced Loan included in the Serviced Whole
Loan or any REO Property securing a Whole Loan to the extent such
reimbursement was paid out of collections from the Serviced Whole Loan
Custodial Account) as to which such Servicing Advance was made;
(vii) to reimburse the Master Servicer, the Special Servicer or the
Trustee, as applicable, out of general collections on the Mortgage Loans
and any REO Properties, for any unreimbursed Advances made thereby that
have been determined to be Nonrecoverable Advances (provided, that amounts
may be withdrawn over time as hereinafter provided) or, subject to the
limitations contained in the following paragraphs of this Section 3.05(a),
for any Workout-Delayed Reimbursement Amounts;
(viii) to pay the Trustee, the Master Servicer, or the Special
Servicer as applicable, any Advance Interest due and owing thereto out of
Default Charges collected on the Mortgage Pool, as and to the extent
contemplated by Section 3.27;
(ix) to the extent that, during any Collection Period, the Master
Servicer has reimbursed or is reimbursing itself, the Special Servicer and
the Trustee, as applicable, for any unreimbursed Advance pursuant to
clause (ii), (vi) or (vii) above or pursuant to Section 3.03, and insofar
as payment has not already been made, and the Default Charges then on
deposit in the Certificate Account is not sufficient to make such payment
pursuant to clause (viii) above, to pay the Master Servicer, the Special
Servicer or the Trustee, as the case may be, out of general collections on
the Mortgage Loans and any REO Properties (exclusive of each Mortgage Loan
or REO Serviced Loan included in the Serviced Whole Loan or any REO
Property securing a Whole Loan to the extent such payment was received out
of collections from the Serviced Whole Loan Custodial Account), any
related Advance Interest accrued and payable on the portion of such
Advance so reimbursed or being reimbursed;
(x) to pay any outstanding expense, other than Advance Interest,
that was incurred with respect to any Mortgage Loan or related REO
Serviced Loan (exclusive of each Mortgage Loan or REO Serviced Loan
included in the Serviced Whole Loan) and that, if paid from a source other
than Default Charges collected on the Mortgage Pool, would constitute an
Additional Trust Fund Expense, such payment to be made out of Default
Charges collected on the Mortgage Pool, as and to the extent contemplated
by Section 3.27;
(xi) to pay itself any items of Additional Master Servicing
Compensation, and to pay to the Special Servicer any items of Additional
Special Servicing Compensation to which it is entitled, in each case from
funds on deposit in the Certificate Account from time to time;
(xii) to pay any unpaid Liquidation Expenses incurred with respect
to any Mortgage Loan or REO Property (exclusive of each Mortgage Loan or
REO Serviced Loan included in the Serviced Whole Loan or any REO Property
securing a Whole Loan to the extent such payment was received out of
collections from the Serviced Whole Loan Custodial Account) such payments
to be made, first, out of payments, Insurance Proceeds, Condemnation
Proceeds or Liquidation Proceeds and, if applicable, REO Revenues received
in respect of such Mortgage Loan or REO Property, as the case may be, and
then, out of general collections on other Mortgage Loans and REO
Properties (exclusive of each Mortgage Loan or REO Serviced Loan included
in the Serviced Whole Loan or any REO Property securing a Whole Loan to
the extent such payment was received out of collections from the Serviced
Whole Loan Custodial Account);
(xiii) to pay, in accordance with Section 3.11(i), out of general
collections on the Mortgage Loans and any REO Properties (exclusive of
each Mortgage Loan or REO Serviced Loan included in the Serviced Whole
Loan or any REO Property securing a Whole Loan to the extent such payment
was paid out of collections from the Serviced Whole Loan Custodial
Account), certain servicing expenses that would, if advanced, constitute
Nonrecoverable Servicing Advances;
(xiv) to pay, out of general collections on the Mortgage Loans and
any REO Properties (exclusive of each Mortgage Loan or REO Serviced Loan
included in the Serviced Whole Loan or any REO Property securing a Whole
Loan to the extent such payment was paid out of collections from the
Serviced Whole Loan Custodial Account), costs and expenses incurred by the
Trust Fund pursuant to Section 3.09(c) (other than the costs of
environmental testing, which are to be covered by, and reimbursable as, a
Servicing Advance);
(xv) to pay itself, the Special Servicer, the Depositor, the
Trustee, or any of their respective directors, officers, members,
managers, employees and agents, as the case may be, out of general
collections on the Mortgage Loans and any REO Properties any amounts
payable to any such Person pursuant to Section 6.03, Section 7.01(b) or
Section 8.05(b), as applicable;
(xvi) to pay, out of general collections on the Mortgage Loans and
REO Properties (exclusive of each Mortgage Loan or REO Serviced Loan
included in the Serviced Whole Loan or any REO Property securing a Whole
Loan to the extent such payment was paid out of collections from the
Serviced Whole Loan Custodial Account), for the cost of recording this
Agreement in accordance with Section 12.02(a);
(xvii) to pay, out of general collections on the Mortgage Loans and
any REO Properties (exclusive of any such amount arising in respect of a
Mortgage Loan included in the Serviced Whole Loan to the extent such
payment was paid out of collections from the Serviced Whole Loan Custodial
Account), any reasonable out-of-pocket cost or expense (including the
reasonable fees of tax accountants and attorneys) incurred by the Trustee
pursuant to Section 3.17(b) in connection with providing advice to the
Special Servicer;
(xviii) to pay to the Master Servicer, the Special Servicer, the
Trustee or the Depositor, as the case may be, any amount specifically
required to be paid to such Person at the expense of the Trust Fund under
any provision of this Agreement to which reference is not made in any
other clause of this Section 3.05(a) (exclusive of any such amount arising
in respect of a Mortgage Loan included in the Serviced Whole Loan to the
extent such payment was paid out of collections from the Serviced Whole
Loan Custodial Account), it being acknowledged that this clause (xviii)
shall not be construed to modify any limitation otherwise set forth in
this Agreement on the time at which any Person is entitled to payment or
reimbursement of any amount or the funds from which any such payment or
reimbursement is permitted to be made;
(xix) to pay the Master Servicer, the Special Servicer, the Mortgage
Loan Seller, a Controlling Class Certificateholder or any other particular
Person, as the case may be, with respect to each Mortgage Loan (exclusive
of any such amount arising in respect of a Mortgage Loan included in the
Serviced Whole Loan to the extent such payment was paid out of collections
from the Serviced Whole Loan Custodial Account), if any, previously
purchased or otherwise removed from the Trust Fund by such Person pursuant
to or as contemplated by this Agreement, all amounts received thereon
subsequent to the date of purchase;
(xx) to transfer Excess Liquidation Proceeds (exclusive of any such
amount arising in respect of a Mortgage Loan included in the Serviced
Whole Loan to the extent such payment was paid out of collections from the
Serviced Whole Loan Custodial Account) to the Excess Liquidation Proceeds
Account in accordance with Section 3.04(c)(iv);
(xxi) to withdraw any amounts deposited in error; and
(xxii) to clear and terminate the Certificate Account at the
termination of this Agreement pursuant to Section 9.01.
If amounts on deposit in the Certificate Account at any particular
time (after withdrawing any portion of such amounts deposited into the
Certificate Account in error) are insufficient to satisfy all payments,
reimbursements and remittances to be made therefrom as set forth in clauses (ii)
through (xx) above, then the corresponding withdrawals from the Certificate
Account shall be made in the following priority and subject to the following
rules: (A) if the payment, reimbursement or remittance is to be made from a
specific source of funds, then such payment, reimbursement or remittance shall
be made from that specific source of funds on a pro rata basis with any and all
other payments, reimbursements and remittances to be made from such specific
source of funds; and (B) if the payment, reimbursement or remittance can be made
from any funds on deposit in the Certificate Account, then (following any
withdrawals made from the Certificate Account in accordance with the immediately
preceding clause (A) above) such payment, reimbursement or remittance shall be
made from such general funds remaining on a pro rata basis with any and all
other payments, reimbursements or remittances to be made from such general
funds; provided that any reimbursements of Advances in respect of any particular
Mortgage Loan or REO Property out of the Certificate Account pursuant to any of
clauses (ii), (vi) and (vii) above, and any payments of interest thereon out of
the Certificate Account pursuant to either of clauses (viii) and (ix) above,
shall be made (to the extent of their respective entitlements to such
reimbursements and/or payments): first, to the Trustee and second, pro rata, to
the Master Servicer and Special Servicer.
The Master Servicer shall keep and maintain separate accounting
records, on a loan-by-loan basis (and on a property-by-property basis for REO
Serviced Loans) when appropriate, in connection with any withdrawal from the
Certificate Account pursuant to clauses (ii) through (xix) above sufficient to
determine the amounts attributable to REMIC I or, in the case of a withdrawal
not related to a specific Mortgage Loan, allocable pro rata based on relative
aggregate Stated Principal Balances.
The Master Servicer shall pay to the Special Servicer (or to third
party contractors at the direction of the Special Servicer) from the Certificate
Account amounts permitted to be paid to it (or to such third party contractors)
therefrom promptly upon receipt of a certificate of a Servicing Officer of the
Special Servicer describing the item and amount to which the Special Servicer
(or such third party contractors) is entitled. The Master Servicer may rely
conclusively on any such certificate and shall have no duty to recalculate the
amounts stated therein. The Special Servicer shall keep and maintain separate
accounting for each Specially Serviced Loan and REO Property, on a loan-by-loan
and property-by-property basis, for the purpose of justifying any request for
withdrawal from the Certificate Account.
Upon the determination that a previously made Advance is a
Nonrecoverable Advance, instead of obtaining reimbursement out of general
collections immediately, the Master Servicer, the Special Servicer or the
Trustee, as applicable, may, in its sole discretion, elect to obtain
reimbursement for such Nonrecoverable Advance over time and the unreimbursed
portion of such Advance will accrue interest at the Reimbursement Rate. If such
an election to obtain reimbursement over time is made, the Master Servicer, the
Special Servicer or the Trustee, as applicable, will, during the first six
months after such nonrecoverability determination was made, only seek
reimbursement for such Nonrecoverable Advance from collections of principal
(with such Nonrecoverable Advances being reimbursed before Workout-Delayed
Reimbursement Amounts). After such initial six months, the Master Servicer, the
Special Servicer or the Trustee, as applicable, may continue to seek
reimbursement for such Nonrecoverable Advance solely from collections of
principal or may seek reimbursement for such Nonrecoverable Advance from general
collections, in each case for a period of time not to exceed an additional six
months (with such Nonrecoverable Advances being reimbursed before
Workout-Delayed Reimbursement Amounts). In the event that the Master Servicer,
the Special Servicer or the Trustee, as applicable, wishes to seek reimbursement
over time after the second six-month period discussed in the preceding sentence,
then the Master Servicer, the Special Servicer or the Trustee, as applicable,
may continue to seek reimbursement for such Nonrecoverable Advance solely from
collections of principal or may seek reimbursement for such Nonrecoverable
Advance from general collections, in either case for such a longer period of
time as agreed to by the Master Servicer, the Special Servicer or the Trustee
(as applicable) and the Directing Certificateholder (with each such applicable
party having the right to agree or disagree in its sole discretion) (with such
Nonrecoverable Advances being reimbursed before Workout-Delayed Reimbursement
Amounts). Notwithstanding the foregoing, at any time after such a determination
to obtain reimbursement over time, the Master Servicer, the Special Servicer or
the Trustee, as applicable, may, in its sole discretion, decide to obtain
reimbursement immediately. The fact that a decision to recover such
Nonrecoverable Advances over time, or not to do so, benefits some Classes of
Certificateholders to the detriment of other Classes shall not, with respect to
the Master Servicer or the Special Servicer, constitute a violation of the
Servicing Standard and/or with respect to the Trustee, constitute a violation of
any fiduciary duty to Certificateholders or contractual duty hereunder. The
Master Servicer, the Special Servicer or the Trustee, as applicable, will give
each Rating Agency three weeks prior notice of its intent to obtain
reimbursement of Nonrecoverable Advances from interest collections as described
above unless (1) the Master Servicer or Special Servicer (or Trustee, if
applicable) determines in its sole discretion that waiting three weeks after
such a notice could jeopardize the Master Servicer's or the Special Servicer's
(or Trustee's, if applicable) ability to recover Nonrecoverable Advances, (2)
changed circumstances or new or different information becomes known to the
Master Servicer or Special Servicer (or Trustee, if applicable) that could
affect or cause a determination of whether any Advance is a Nonrecoverable
Advance, whether to defer reimbursement of a Nonrecoverable Advance or the
determination in clause (1) above, or (3) the Master Servicer or Special
Servicer has not timely received from the Trustee information requested by the
Master Servicer or Special Servicer to consider in determining whether to defer
reimbursement of a Nonrecoverable Advance; provided that, if clause (1), (2) or
(3) applies, the Master Servicer or Special Servicer (or Trustee, if applicable)
shall give each Rating Agency notice of an anticipated reimbursement to it of
Nonrecoverable Advances from amounts in the Certificate Account allocable to
interest on the Mortgage Loans as soon as reasonably practicable in such
circumstances. The Master Servicer or Special Servicer (or Trustee, if
applicable) shall have no liability for any loss, liability or expense resulting
from any notice provided to each Rating Agency contemplated by the immediately
preceding sentence.
If the Master Servicer, the Special Servicer or the Trustee, as
applicable, is reimbursed out of general collections for any unreimbursed
Advances that are determined to be Nonrecoverable Advances (together with any
interest accrued and payable thereon), then (for purposes of calculating
distributions on the Certificates) such reimbursement and payment of interest
shall be deemed to have been made: first, out of the Principal Distribution
Amount, that, but for its application to reimburse a Nonrecoverable Advance
and/or to pay interest thereon, would be included in the Available Distribution
Amount for any subsequent Distribution Date, and second, out of other amounts
that, but for their application to reimburse a Nonrecoverable Advance and/or to
pay interest thereon, would be included in the Available Distribution Amount for
any subsequent Distribution Date.
If and to the extent that any payment is deemed to be applied as
contemplated in the paragraph above to reimburse a Nonrecoverable Advance or to
pay interest thereon, then the Principal Distribution Amount for such
Distribution Date shall be reduced, to not less than zero, by the amount of such
reimbursement. If and to the extent (i) any Advance is determined to be a
Nonrecoverable Advance, (ii) such Advance and/or interest thereon is reimbursed
out of the Principal Distribution Amount as contemplated above and (iii) the
particular item for which such Advance was originally made is subsequently
collected out of payments or other collections in respect of the related
Mortgage Loan, then the Principal Distribution Amount for the Distribution Date
that corresponds to the Collection Period in which such item was recovered shall
be increased by an amount equal to the lesser of (A) the amount of such item and
(B) any previous reduction in the Principal Distribution Amount for a prior
Distribution Date as contemplated in the paragraph above resulting from the
reimbursement of the subject Advance and/or the payment of interest thereon.
To the extent a Nonrecoverable Advance with respect to a Mortgage
Loan is required to be reimbursed from the principal portion of the general
collections on the Mortgage Loans pursuant to this Section 3.05(a), such
reimbursement shall be made first, from the principal collections available on
the Mortgage Loans included in the same Loan Group as such Mortgage Loan and if
the principal collections in such Loan Group are not sufficient to make such
reimbursement in full, then from the principal collections available in the
other Loan Group (after giving effect to any reimbursement of Nonrecoverable
Advances related to such other Loan Group). To the extent the Principal
Distribution Amount for a Distribution Date is increased as set forth in
preceding paragraph, such increase shall be allocated first to the principal
collections in the Loan Group with respect to which the Mortgage Loan as to
which the related Nonrecoverable Advance was made does not belong, and then to
the Loan Group with respect to which the Mortgage Loan as to which the related
Nonrecoverable Advance was made does belong.
If one or more unreimbursed Workout-Delayed Reimbursement Amounts
exist, then such Workout-Delayed Reimbursement Amounts will be reimbursable only
from amounts in the Certificate Account that represent collections of principal
on the Mortgage Loans (net of any collections of principal applied to
reimbursement of Nonrecoverable Advances or interest thereon); provided,
however, that on any Distribution Date when (1) less than 10% of the initial
aggregate Stated Principal Balance of the Mortgage Pool is outstanding and (2)
the sum of the aggregate unpaid Nonrecoverable Advances plus the aggregate
unpaid Workout-Delayed Reimbursement Amounts that have not been reimbursed to
the Master Servicer, Special Servicer or Trustee, as applicable, exceeds 20% of
the aggregate Stated Principal Balance of the Mortgage Pool then outstanding,
then the Master Servicer, the Special Servicer or the Trustee, as applicable,
may obtain reimbursement of any outstanding Workout-Delayed Reimbursement Amount
from principal collections or any other amounts in the Certificate Account,
including but not limited to interest collected on the Mortgage Loans, if
principal is not sufficient to pay such amounts; provided, further, however,
that the foregoing shall not in any manner limit the right of the Master
Servicer, the Special Servicer or the Trustee, as applicable, to choose
voluntarily to seek reimbursement of Workout-Delayed Reimbursement Amounts
solely from collections of principal. The Master Servicer, the Special Servicer
or the Trustee, as applicable, will give each Rating Agency three weeks prior
notice of its intent to obtain reimbursement of Workout-Delayed Reimbursement
Amounts from interest collections as described in the preceding sentence.
If the Master Servicer, the Special Servicer or the Trustee, as
applicable, is reimbursed out of general collections for any Workout-Delayed
Reimbursement Amounts, then (for purposes of calculating distributions on the
Certificates) such reimbursement and payment of interest shall be deemed to have
been made: first, out of the Principal Distribution Amount, that, but for its
application to reimburse a Workout-Delayed Reimbursement Amount, would be
included in the Available Distribution Amount for any subsequent Distribution
Date, and second, out of other amounts that, but for their application to
reimburse a Workout-Delayed Reimbursement Amount, would be included in the
Available Distribution Amount for any subsequent Distribution Date.
If and to the extent that any payment is deemed to be applied as
contemplated in the paragraph above to reimburse a Workout-Delayed Reimbursement
Amount, then the Principal Distribution Amount for such Distribution Date shall
be reduced, to not less than zero, by the amount of such reimbursement. If and
to the extent (i) such Workout-Delayed Reimbursement Amount is reimbursed out of
the Principal Distribution Amount as contemplated above and (ii) the particular
item for which such Workout-Delayed Reimbursement Amount was originally made is
subsequently collected out of payments or other collections in respect of the
related Mortgage Loan, then the Principal Distribution Amount for the
Distribution Date that corresponds to the Collection Period in which such item
was recovered shall be increased by an amount equal to the lesser of (A) the
amount of such item and (B) any previous reduction in the Principal Distribution
Amount for a prior Distribution Date as contemplated in the paragraph above
resulting from the reimbursement of the subject Workout-Delayed Reimbursement
Amount.
To the extent a Workout-Delayed Reimbursement Amount with respect to
a Mortgage Loan is required to be reimbursed from the principal portion of the
general collections on the Mortgage Loans pursuant to clause (vii) of this
Section 3.05(a), such reimbursement shall be made first, from the principal
collections available on the Mortgage Loans included in the same Loan Group as
such Mortgage Loan and, if the principal collections in such Loan Group are not
sufficient to make such reimbursement in full, then from the principal
collections available in the other Loan Group (after giving effect to any
reimbursement of Nonrecoverable Advances related to such other Loan Group). To
the extent the Principal Distribution Amount for a Distribution Date is
increased as set forth in preceding paragraph, such increase shall be allocated
first to the principal collections in the Loan Group with respect to which the
Mortgage Loan as to which the related Workout-Delayed Reimbursement Amount was
reimbursed does not belong, and then to the Loan Group with respect to which the
Mortgage Loan as to which the related Workout-Delayed Reimbursement Amount was
reimbursed does belong.
For the avoidance of doubt, notwithstanding anything contained in
this Agreement to the contrary, the right of any Person hereunder to recover
amounts owing with respect to a Whole Loan from the Certificate Account and/or
the Serviced Whole Loan Custodial Account shall be without duplication.
(b) The Trustee may, from time to time, make withdrawals from the
REMIC I Distribution Account for any of the following purposes (the order set
forth below not constituting an order of priority for such withdrawals):
(i) to be deemed to transfer from the REMIC I Distribution Account
to the REMIC II Distribution Account on or before the related Distribution
Date the Available Distribution Amount as provided in Section 4.01(a)(ii)
and Prepayment Premiums to be distributed in respect of the REMIC I
Regular Interests, as contemplated by Section 4.01(c)(i);
(ii) to pay the Trustee accrued and unpaid Trustee Fees pursuant to
Section 8.05(a) and to reimburse the Trustee for any other amounts to
which it is entitled to be reimbursed from the Distribution Account
pursuant to this Agreement;
(iii) to pay the Trustee or any of its respective directors,
officers, employees and agents, as the case may be, any amounts payable or
reimbursable to any such Person pursuant to Section 8.05(b);
(iv) as contemplated by Section 12.01(h), to pay for the reasonable
costs of the Opinions of Counsel sought by the Trustee as contemplated by
Section 12.01(a) or 12.01(d) in connection with any amendment to this
Agreement requested by the Trustee, provided such amendment is in
furtherance of the rights and interests of Certificateholders;
(v) to pay for the reasonable costs of the Opinions of Counsel
sought by the Trustee as contemplated by Section 12.02(a);
(vi) to (A) pay any and all federal, state and local taxes imposed
on REMIC I or REMIC II or on the assets or transactions of any such REMIC,
together with all incidental costs and expenses, and any and all
reasonable expenses relating to tax audits, if and to the extent that
either (1) none of the Trustee, the Master Servicer, the Special Servicer
or the REMIC Administrator is liable therefor pursuant to Section 10.01(d)
and/or Section 10.01(h) or (2) any such Person that may be so liable has
failed to timely make the required payment, and (B) reimburse the REMIC
Administrator for reasonable expenses incurred by and reimbursable to it
by the Trust pursuant to Section 10.01(d) and/or Section 10.01(h); and
(vii) to clear and terminate the REMIC I Distribution Account at the
termination of this Agreement pursuant to Section 9.01.
Taxes imposed on REMIC I or REMIC II shall be allocated to the
related REMIC.
(c) The Trustee shall be deemed to make withdrawals from the REMIC
II Distribution Account for any of the following purposes: (i) to make
distributions to Certificateholders (other than Holders of the Class V
Certificates or the Class R-I Certificates) on each Distribution Date pursuant
to Section 4.01(b), Section 4.01(c)(i) or Section 9.01, as applicable; and (ii)
to clear and terminate the REMIC II Distribution Account at the termination of
this Agreement pursuant to Section 9.01.
(d) On each Distribution Date, the Trustee shall withdraw from the
Excess Liquidation Proceeds Account and deposit into the Distribution Account,
for distribution on such Distribution Date, an amount equal to the lesser of (i)
the entire amount, if any, then on deposit in the Excess Liquidation Proceeds
Account and (ii) the excess, if any, of the aggregate amount distributable on
such Distribution Date pursuant to Section 4.01(a) and Section 4.01(b), over the
Available Distribution Amount for such Distribution Date (calculated without
regard to such transfer from the Excess Liquidation Proceeds Account to the
Distribution Account); provided that on the Business Day prior to the Final
Distribution Date, the Trustee shall withdraw from the Excess Liquidation
Proceeds Account and deposit into the Distribution Account, for distribution on
such Distribution Date, any and all amounts then on deposit in the Excess
Liquidation Proceeds Account.
(e) The Trustee, the Depositor, the Master Servicer and the Special
Servicer shall in all cases have a right prior to the Certificateholders to any
particular funds on deposit in the Certificate Account and the Distribution
Account from time to time for the reimbursement or payment of compensation,
Advances (with interest thereon at the Reimbursement Rate) and their respective
expenses hereunder, but only if and to the extent such compensation, Advances
(with interest) and expenses are to be reimbursed or paid from such particular
funds on deposit in the Certificate Account or the Distribution Account pursuant
to the express terms of this Agreement.
(f) The Master Servicer may (and, with respect to clause (i),
shall), from time to time, make withdrawals from each Serviced Whole Loan
Custodial Account, for any of the following purposes (the order set forth below
not constituting an order of priority for such withdrawals):
(i) to make remittances each month no later than the Master Servicer
Remittance Date, in an aggregate amount of immediately available funds
equal to the applicable portion of the Serviced Whole Loan Remittance
Amount, to the One Stamford Forum Note B Holder and to the Certificate
Account for the benefit of the Trust (as holder of the related Mortgage
Loan or any related REO Serviced Loan), in accordance with Sections 3 and
4 of the One Stamford Forum Intercreditor Agreement, such remittances to
the Trustee to be made into the Distribution Account;
(ii) to reimburse the Master Servicer or the Trustee, as applicable,
for xxxxxxxxxxxx X&X Advances made with respect to such Whole Loan or, in
the case of the Trustee, with respect to the related Mortgage Loan (in
each case, with its own funds), as the case may be, respective rights to
reimbursement pursuant to this clause (ii) with respect to any P&I Advance
(other than Nonrecoverable P&I Advances, which are reimbursable pursuant
to clause (vii) below) or principal and/or interest advance being limited
to amounts that represent Late Collections of interest and principal
received in respect of the particular Whole Loan as to which such P&I
Advance or principal and/or interest advance was made (net of related
Master Servicing Fees and/or Workout Fees);
(iii) to pay to the Master Servicer earned and unpaid Master
Servicing Fees in respect of the Serviced Whole Loan and related REO
Serviced Loan, the Master Servicer's right to payment pursuant to this
clause (iii) with respect to the Serviced Whole Loan or REO Serviced Loan
being payable from, and limited to, amounts received on or in respect of
such Whole Loan (whether in the form of payments, Liquidation Proceeds,
Condemnation Proceeds or Insurance Proceeds) or such REO Serviced Loan
(whether in the form of REO Revenues, Liquidation Proceeds or Insurance
Proceeds) that are allocable as a recovery of interest thereon;
(iv) to pay to the Special Servicer, out of general collections on
the Serviced Whole Loan and related REO Properties, earned and unpaid
Special Servicing Fees in respect of the Serviced Whole Loan and related
REO Properties;
(v) to pay to the Special Servicer earned and unpaid Workout Fees
and Liquidation Fees to which it is entitled pursuant to, and from the
sources contemplated by, Section 3.11(c);
(vi) to reimburse itself, the Special Servicer or the Trustee, as
applicable, for any unreimbursed Servicing Advances with respect to the
Serviced Whole Loan or related REO Property made thereby (in each case,
with its own funds), the Master Servicer's, the Special Servicer's and the
Trustee's, as the case may be, respective rights to reimbursement pursuant
to this clause (vi) with respect to any Servicing Advance (other than
Nonrecoverable Servicing Advances, which are reimbursable pursuant to
clause (vii) below) being limited to (A) payments made by the related
Mortgagor that are allocable to cover the item in respect of which such
Servicing Advance was made, and (B) Insurance Proceeds, Condemnation
Proceeds, Liquidation Proceeds and, if applicable, REO Revenues received
in respect of the Serviced Whole Loan or REO Property as to which such
Servicing Advance was made;
(vii) to reimburse the Master Servicer, the Special Servicer or the
Trustee, as applicable, out of general collections on the Serviced Whole
Loan or REO Property, for any unreimbursed related Advances made thereby
that have been determined to be Nonrecoverable Advances;
(viii) to pay the Trustee, the Master Servicer, or the Special
Servicer as applicable, any Advance Interest due and owing thereto out of
Default Charges collected on the Serviced Whole Loan as and to the extent
contemplated by Section 3.27;
(ix) to the extent that, during any Collection Period, the Master
Servicer has reimbursed or is reimbursing itself, the Special Servicer or
the Trustee, as applicable, for any unreimbursed Advance pursuant to
clause (ii), (vi) or (vii) above or pursuant to Section 3.03, and insofar
as payment has not already been made, and the Default Charges then on
deposit in the Serviced Whole Loan Custodial Account is not sufficient to
make such payment pursuant to clause (viii) above, to pay the Master
Servicer, the Special Servicer or the Trustee, as the case may be, out of
general collections on the Serviced Whole Loan and related REO Property,
any related Advance Interest accrued and payable on the portion of such
Advance so reimbursed or being reimbursed;
(x) to pay any outstanding expense, other than Advance Interest,
that was incurred with respect to the Serviced Whole Loan and that, if
paid from a source other than Default Charges collected on the Serviced
Whole Loan, would constitute an Additional Trust Fund Expense, such
payment to be made out of Default Charges collected on the Serviced Whole
Loan, as and to the extent contemplated by Section 3.27;
(xi) to pay itself any items of Additional Master Servicing
Compensation, and to pay to the Special Servicer any items of Additional
Special Servicing Compensation to which it is entitled, in each case with
respect to the Serviced Whole Loan from funds collected on the Serviced
Whole Loan that are on deposit in the Serviced Whole Loan Custodial
Account from time to time;
(xii) to pay any unpaid Liquidation Expenses incurred with respect
to the Serviced Whole Loan or REO Property, such payments to be made,
first, out of payments, Insurance Proceeds, Condemnation Proceeds or
Liquidation Proceeds and, if applicable, REO Revenues received in respect
of the Serviced Whole Loan or REO Property, as the case may be, and then,
out of general collections on the Serviced Whole Loan or REO Property;
(xiii) to pay, in accordance with Section 3.11(i), out of general
collections on the Serviced Whole Loan and REO Property, certain servicing
expenses with respect to the Serviced Whole Loan that would, if advanced,
constitute Nonrecoverable Servicing Advances;
(xiv) to pay, out of general collections on the Serviced Whole Loan
and REO Property, costs and expenses incurred by the One Stamford Forum
Note B Holder pursuant to Section 3.09(c) (other than the costs of
environmental testing, which are to be covered by, and reimbursable as, a
Servicing Advance);
(xv) to pay itself, the Special Servicer, the Depositor, the Trustee
or any of their respective directors, officers, members, managers,
employees and agents, as the case may be, out of general collections on
the Serviced Whole Loan or REO Property, any amounts payable to any such
Person pursuant to Section 6.03, Section 7.01(b) or Section 8.05(b), as
applicable, with respect to the Serviced Whole Loan;
(xvi) [RESERVED];
(xvii) to pay, out of general collections on the Serviced Whole Loan
and REO Property, any reasonable out-of-pocket cost or expense (including
the reasonable fees of tax accountants and attorneys) incurred by the
Trustee pursuant to Section 3.17(b) in connection with providing advice to
the Special Servicer with respect to the Serviced Whole Loan;
(xviii) to pay to the Master Servicer, the Special Servicer, the
Trustee or the Depositor, as the case may be, to the extent that such
amount is related to the Mortgage Loan included in the Serviced Whole
Loan, any amount specifically required to be paid to such Person at the
expense of the Trust Fund under any provision of this Agreement to which
reference is not made in any other clause of this Section 3.05(f), it
being acknowledged that this clause (xviii) shall not be construed to
modify any limitation otherwise set forth in this Agreement on the time at
which any Person is entitled to payment or reimbursement of any amount or
the funds from which any such payment or reimbursement is permitted to be
made;
(xix) to pay the Master Servicer, the Special Servicer, the Mortgage
Loan Seller, a Controlling Class Certificateholder or any other particular
Person, as the case may be, with respect to the Mortgage Loan related to
the Serviced Whole Loan, if any, previously purchased or otherwise removed
from the Trust Fund by such Person pursuant to or as contemplated by this
Agreement all amounts received thereon subsequent to the date of purchase,
to the extent payable in respect of such Loan;
(xx) to transfer Excess Liquidation Proceeds related to the Mortgage
Loan included in the Serviced Whole Loan to the Excess Liquidation
Proceeds Account in accordance with Section 3.04(e);
(xxi) to withdraw any amounts deposited into the Serviced Whole Loan
Custodial Account in error; and
(xxii) to clear and terminate the Serviced Whole Loan Custodial
Account at the termination of this Agreement pursuant to Section 9.01.
If amounts on deposit in the Serviced Whole Loan Custodial Account
at any particular time (after withdrawing any portion of such amounts deposited
into the Serviced Whole Loan Custodial Account in error) are insufficient to
satisfy all payments, reimbursements and remittances to be made therefrom as set
forth in clauses (ii) through (xx) above, then the corresponding withdrawals
from the Serviced Whole Loan Custodial Account shall be made in the following
priority and subject to the following rules: (A) if the payment, reimbursement
or remittance is to be made from a specific source of funds, then such payment,
reimbursement or remittance shall be made from that specific source of funds on
a pro rata basis with any and all other payments, reimbursements and remittances
to be made from such specific source of funds; and (B) if the payment,
reimbursement or remittance can be made from any funds on deposit in the
Serviced Whole Loan Custodial Account, then (following any withdrawals made from
the Serviced Whole Loan Custodial Account in accordance with the immediately
preceding clause (A) above) such payment, reimbursement or remittance shall be
made from such general funds remaining on a pro rata basis with any and all
other payments, reimbursements or remittances to be made from such general
funds; provided that any reimbursements of Advances in respect of such Whole
Loan or REO Property out of the Serviced Whole Loan Custodial Account pursuant
to any of clauses (ii), (vi) and (vii) above, and any payments of interest
thereon out of the Serviced Whole Loan Custodial Account pursuant to either of
clauses (viii) and (ix) above, shall be made (to the extent of their respective
entitlements to such reimbursements and/or payments): first, to the Trustee; and
second, pro rata, to the Master Servicer and Special Servicer.
Notwithstanding anything to the contrary in this Section 3.05(f),
the Master Servicer acknowledges its obligations under the One Stamford Forum
Intercreditor Agreement to remit funds thereunder then due and owing to the One
Stamford Forum Note B Holder in the time frames set forth therein.
The Master Servicer and the Special Servicer, as applicable, shall
notify the Trustee in writing of any transfer of the One Stamford Forum Note B,
specifically identifying the name, address and contact information of the
transferee if the Master Servicer and the Special Servicer, as applicable, has
actual knowledge of such transferee's name, address and contact information.
Notwithstanding anything contained in this Agreement to the
contrary, the Master Servicer or the Special Servicer, as applicable, shall be
permitted (but shall have no affirmative obligation whatsoever or be otherwise
required under this Agreement) to structure the time of recoveries of
Nonrecoverable Advances in such a manner as the Master Servicer or the Special
Servicer, as applicable, determines, in accordance with the Servicing Standard,
is in the best interest of the Certificateholders as a collective whole, which
may include being reimbursed for Nonrecoverable Advances in installments over
time.
(g) If any Loss of Value Payments are deposited into the Loss of
Value Reserve Fund with respect to any Loan or any related REO Property, then
the Special Servicer shall, promptly when needed, transfer such Loss of Value
Payments (up to the remaining portion thereof) from the Loss of Value Reserve
Fund to the Master Servicer for deposit into the Certificate Account for the
following purposes:
(i) to reimburse the Master Servicer, the Special Servicer or the
Trustee, in accordance with Section 3.05(a), for any Nonrecoverable
Advance made by such party with respect to such Loan or any related REO
Property (together with interest thereon);
(ii) to pay, in accordance with Section 3.05(a), or to reimburse the
Trust for the prior payment of, any expense relating to such Loan or any
related REO Property that constitutes or, if not paid out of such Loss of
Value Payments, would constitute an Additional Trust Fund Expense;
(iii) to offset any Realized Loss (as calculated without regard to
the application of such Loss of Value Payments) incurred with respect to
such Loan or any successor REO Serviced Loan with respect thereto;
(iv) following the occurrence of a liquidation event or other
disposition with respect to such Mortgage Loan or any related REO
Property, to cover the items contemplated by the immediately preceding
clauses (i) through (iii) in respect of any other Loan or REO Serviced
Loan; and
(v) on the final Distribution Date after all distributions have been
made as set forth in clauses (i) through (iv) above, to the Mortgage Loan
Seller to offset any Realized Losses (net of any amount contributed by the
Mortgage Loan Seller that was used pursuant to clauses (i) through (iv)).
Any Loss of Value Payments transferred to the Certificate Account
pursuant to clauses (i) through (iii) of the prior paragraph shall, except for
purposes of Section 3.11(c), be deemed to constitute Liquidation Proceeds
received by the Trust in respect of the related Loan or any successor REO
Serviced Loan with respect thereto for which such Loss of Value Payments were
received; and any Loss of Value Payments transferred to the Certificate Account
pursuant to clause (iv) of the prior paragraph shall, except for purposes of
Section 3.11(c), be deemed to constitute Liquidation Proceeds received by the
Trust in respect of the Loan or REO Serviced Loan for which such Loss of Value
Payments are being transferred to the Certificate Account to cover an item
contemplated by clauses (i) through (iii) of the prior paragraph.
On the Business Day immediately prior to the Master Servicer
Remittance Date related to the final Distribution Date, the Special Servicer
shall withdraw from the Loss of Value Reserve Fund and transfer to the Master
Servicer, for deposit in the Certificate Account, any Loss of Value Payments
remaining on deposit in the Loss of Value Reserve Fund. Such Loss of Value
Payments so deposited in the Certificate Account shall constitute part of the
Available Distribution Amount for the final Distribution Date, to the extent
needed to distribute to the Holders of the REMIC II Regular Certificates in
accordance with Section 9.01, all interest then payable thereto, together with
the aggregate Certificate Balance of, and all loss reimbursement amounts for
such final Distribution Date in respect of, the respective Classes of the REMIC
II Regular Certificates, and otherwise shall be distributable to the Holders of
the Residual Certificates on the final Distribution Date.
Section 3.06 Investment of Funds in the Certificate Account, the
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Interest Reserve Account, the Excess Interest Distribution Account, the REMIC I
-------------------------------------------------------------------------------
Distribution Account, the REMIC II Distribution Account, the Excess Liquidation
-------------------------------------------------------------------------------
Proceeds Account and the REO Account.
-------------------------------------
(a) The Master Servicer may direct any depository institution
maintaining the Certificate Account, the Servicing Account, the Interest Reserve
Account and each Serviced Whole Loan Custodial Account, the Special Servicer may
direct any depository institution maintaining each REO Account, and the Trustee
may direct any depository institution maintaining the REMIC I Distribution
Account, the REMIC II Distribution Account, the Excess Interest Distribution
Account and the Excess Liquidation Proceeds Account to invest, or if it is such
depository institution, may itself invest, the funds held therein (each such
account, for purposes of this Section 3.06, an "Investment Account") only in one
or more Permitted Investments bearing interest or sold at a discount, and
maturing, unless payable on demand, no later than the Business Day immediately
preceding the next succeeding date on which such funds are required to be
withdrawn from such account pursuant to this Agreement. All such Permitted
Investments shall be held to maturity, unless payable on demand, in which case
such investments may be sold at any time. Any investment of funds in an
Investment Account shall be made in the name of the Trustee for the benefit of
the Certificateholders and, in the case of a Permitted Investment in any
Investment Account solely related to a Whole Loan, the One Stamford Forum Note B
Holder (in its capacity as such). The Master Servicer (with respect to Permitted
Investments of amounts in the Certificate Account, the Interest Reserve Account,
each Serviced Whole Loan Custodial Account and the Servicing Account) and the
Special Servicer (with respect to Permitted Investments of amounts in each REO
Account), on behalf of the Trustee for the benefit of the Certificateholders and
in the case of any Investment Account solely related to a Whole Loan, the One
Stamford Forum Note B Holder, and the Trustee (with respect to the Excess
Liquidation Proceeds Account, the REMIC I Distribution Account, the REMIC II
Distribution Account and the Excess Interest Distribution Account), on behalf of
the Certificateholders, shall (and the Trustee hereby designates the Master
Servicer, the Special Servicer or itself, as applicable, as the Person that
shall) (i) be the "entitlement holder" of any Permitted Investment that is a
"security entitlement" and (ii) maintain "control" of any Permitted Investment
that is either a "certificated security" or an "uncertificated security". For
purposes of this Section 3.06(a), the terms "entitlement holder", "security
entitlement", "control", "certificated security" and "uncertificated security"
shall have the meanings given such terms in Revised Article 8 (1994 Revision) of
the UCC, and "control" of any Permitted Investment by the Master Servicer or the
Special Servicer shall constitute "control" by a Person designated by, and
acting on behalf of, the Trustee for purposes of Revised Article 8 (1994
Revision) of the UCC. If amounts on deposit in an Investment Account are at any
time invested in a Permitted Investment payable on demand, the Master Servicer
(in the case of the Certificate Account, the Interest Reserve Account, each
Serviced Whole Loan Custodial Account and the Servicing Account) or the Special
Servicer (in the case of each REO Account) and the Trustee (in the case of the
Excess Interest Distribution Account, the Excess Liquidation Proceeds Account,
the REMIC I Distribution Account and the REMIC II Distribution Account) shall:
(i) consistent with any notice required to be given thereunder,
demand that payment thereon be made on the last day such Permitted
Investment may otherwise mature hereunder in an amount equal to the lesser
of (1) all amounts then payable thereunder and (2) the amount required to
be withdrawn on such date; and
(ii) demand payment of all amounts due thereunder promptly upon
determination by the Master Servicer, the Special Servicer or the Trustee,
as the case may be, that such Permitted Investment would not constitute a
Permitted Investment in respect of funds thereafter on deposit in the
Investment Account.
(b) Whether or not the Master Servicer directs the investment of
funds in the Certificate Account, the Interest Reserve Account, each Serviced
Whole Loan Custodial Account and the Servicing Account, interest and investment
income realized on funds deposited therein, to the extent of the Net Investment
Earnings, if any, for each such Investment Account for each Collection Period,
shall be for the sole and exclusive benefit of the Master Servicer and shall be
subject to its withdrawal in accordance with Section 3.05(a) or Section 3.05(f),
as applicable. Whether or not the Special Servicer directs the investment of
funds in each REO Account, interest and investment income realized on funds
deposited therein, to the extent of the Net Investment Earnings, if any, for
such Investment Account for each Collection Period, shall be for the sole and
exclusive benefit of the Special Servicer and shall be subject to its withdrawal
in accordance with Section 3.16(b). Whether or not the Trustee directs the
investment of funds in the Interest Reserve Account, the Excess Interest
Distribution Account, the Excess Liquidation Proceeds Account, the REMIC I
Distribution Account and the REMIC II Distribution Account, interest and
investment income realized on funds deposited therein, to the extent of Net
Investment Earnings, if any, for each such Investment Account for each
Collection Period, shall be for the sole and exclusive benefit of the Trustee
and shall be subject to withdrawal by the Trustee. If any loss shall be incurred
in respect of any Permitted Investment on deposit in any Investment Account, the
Master Servicer (in the case of the Certificate Account, the Interest Reserve
Account, each Serviced Whole Loan Custodial Account and the Servicing Account
(with respect to funds invested by the Master Servicer for its own account)),
the Special Servicer (in the case of each REO Account) and the Trustee (in the
case of the Interest Reserve Account, the Excess Interest Distribution Account,
the Excess Liquidation Proceeds Account, the REMIC I Distribution Account and
the REMIC II Distribution Account) shall promptly deposit therein from its own
funds, without right of reimbursement, no later than the end of the Collection
Period during which such loss was incurred, the amount of the Net Investment
Loss, if any, for such Collection Period. The Trustee shall have no liability
whatsoever with respect to any such losses, except in respect to losses incurred
in respect of any Permitted Investment on deposit in the Interest Reserve
Account, the Excess Interest Distribution Account, the Excess Liquidation
Proceeds Account, the REMIC I Distribution Account and the REMIC II Distribution
Account; and to the extent that it is the obligor on any such Permitted
Investment.
(c) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of a payment due under any Permitted Investment, or
if a default occurs in any other performance required under any Permitted
Investment and the Master Servicer or the Special Servicer, as applicable, has
not taken such action, the Trustee may and, subject to Section 8.02, upon the
request of Holders of Certificates entitled to not less than 25% of the Voting
Rights allocated to any Class, shall take such action as may be appropriate to
enforce such payment or performance, including, without limitation, the
institution and prosecution of appropriate proceedings.
(d) Notwithstanding the investment of funds held in any Investment
Account, for purposes of the calculations hereunder, including, without
limitation, the calculation of the Available Distribution Amount and the Master
Servicer Remittance Amount, the amounts so invested (but not any interest earned
thereon) shall be deemed to remain on deposit in such Investment Account.
Section 3.07 Maintenance of Insurance Policies; Errors and Omissions
-------------------------------------------------------
and Fidelity Coverage.
----------------------
(a) In the case of each Serviced Loan, the Master Servicer shall use
reasonable efforts consistent with the Servicing Standard to cause each
Mortgagor to maintain, and, if the Mortgagor does not so maintain, the Master
Servicer will itself cause to be maintained, for each Mortgaged Property
(including each Mortgaged Property relating to any Specially Serviced Loan) all
insurance coverage as is required, subject to applicable law, under the related
loan documents; provided that, if and to the extent that any such loan documents
permit the holder thereof any discretion (by way of consent, approval or
otherwise) as to the insurance coverage that the related Mortgagor is required
to maintain, the Master Servicer shall exercise such discretion in a manner
consistent with the Servicing Standard and, prior to the date such existing
insurance expires or is required to be renewed, the Master Servicer may, to the
extent consistent with the Servicing Standard, take into account insurance in
place at loan origination, with a view towards requiring insurance comparable to
that required under other Serviced Loans with express provisions governing such
matters and including business interruption or rental loss insurance for at
least 12 months; and provided, further, that the Master Servicer shall be
required to maintain such insurance coverage upon the related Mortgagor's
failure to do so only to the extent that such insurance is available at
commercially reasonable rates and the Trustee, on behalf of the Trust, as
mortgagee has an insurable interest. Subject to Section 3.17(b), the Special
Servicer shall also cause to be maintained for each REO Property no less
insurance coverage (to the extent available at commercially reasonable rates)
(A) than was previously required of the related Mortgagor under the related loan
documents and (B), at a minimum, (i) hazard insurance with a replacement cost
rider, (ii) business interruption or rental loss insurance for at least 12
months, and (iii) commercial general liability insurance, in each case, in an
amount customary for the type and geographic location of such REO Property and
consistent with the Servicing Standard; provided that all such insurance
required to be maintained by Master Servicer or Special Servicer shall be
obtained from Qualified Insurers that, in each case, shall have a financial
strength or claims-paying rating no lower than two rating categories below the
highest rated Certificates outstanding, and in any event no lower than "A" from
Fitch and "A" from S&P (or in such other form and amount or issued by an insurer
with such other financial strength or claims-paying ability as would not, as
confirmed in writing by the relevant Rating Agency, result in an Adverse Rating
Event. All such insurance policies shall contain (if they insure against loss to
property) a "standard" mortgagee clause, with loss payable to the Master
Servicer on behalf of the Trustee (in the case of insurance maintained in
respect of the Mortgage Loans), or shall name the Trustee (and in the case of
the Serviced Whole Loan the One Stamford Forum Note B Holder) as the insured,
with loss payable to the Special Servicer on behalf of the Trustee (and in the
case of the Serviced Whole Loan the One Stamford Forum Note B Holder) (in the
case of insurance maintained in respect of REO Properties), and shall be issued
by an insurer authorized under applicable law to issue such insurance, and,
unless prohibited by the related Mortgage, may contain a deductible clause (not
in excess of a customary amount). Any amounts collected by the Master Servicer
or Special Servicer under any such policies (other than amounts to be applied to
the restoration or repair of the related Mortgaged Property or REO Property or
amounts to be released to the related Mortgagor, in each case in accordance with
the Servicing Standard) shall be deposited into the Certificate Account or, if
the Serviced Whole Loan is involved, the Serviced Whole Loan Custodial Account,
subject to withdrawal pursuant to Section 3.05(a), or Section 3.05(f), as
applicable in the case of amounts received in respect of a Serviced Loan, or in
the applicable REO Account, subject to withdrawal pursuant to Section 3.16(c),
in the case of amounts received in respect of an REO Property. Any cost incurred
by the Master Servicer or Special Servicer in maintaining any such insurance
shall not, for purposes hereof, including calculating monthly distributions to
Certificateholders, be added to unpaid principal balance or Stated Principal
Balance of the related Serviced Loan, notwithstanding that the terms of such
Serviced Loan so permit; provided, however, that this sentence shall not limit
the rights of the Master Servicer or Special Servicer on behalf of the Trust or,
if the Serviced Whole Loan is involved, on behalf of the One Stamford Forum Note
B Holder, to enforce any obligations of the related Mortgagor under such
Serviced Loan. Costs to the Master Servicer or Special Servicer of maintaining
insurance policies pursuant to this Section 3.07 shall be paid by and
reimbursable to the Master Servicer or the Special Servicer, as the case may be,
as a Servicing Advance.
If the related loan documents specifically and expressly set forth
terms requiring insurance coverage against terrorist or similar acts for a
Serviced Loan, then the Master Servicer and the Special Servicer shall enforce
the terms of the related loan documents in accordance with the Servicing
Standard, and if the Mortgagor fails to maintain such insurance, such failure
shall constitute a Servicing Transfer Event. To the extent the loan documents do
not set forth specific terms requiring insurance coverage against terrorist or
similar acts and a Serviced Loan (x) requires a Mortgagor to maintain insurance
policies covering some or all of the risks contained in the Additional
Exclusions or (y) in accordance with the Servicing Standard, the Master Servicer
has determined (in consultation with the Special Servicer and the Directing
Certificateholder) that the loan documents permit the lender to require the
Mortgagor to maintain insurance policies covering some or all the risks
contained in the Additional Exclusions (the covered risks required to be covered
or that the lender has the discretion to require to be covered being referred to
as "Covered Risks"), the Master Servicer shall use reasonable efforts in
accordance with the Servicing Standard to determine whether, upon renewal of the
Mortgagor's property or casualty insurance (including any all risk insurance
policy), any of the Covered Risks are excluded from coverage. If any of the
Covered Risks are determined by the Master Servicer to be excluded from
coverage, the Master Servicer shall request the Mortgagor to either (i) purchase
insurance acceptable to the Master Servicer in accordance with the Servicing
Standard and in accordance with the related loan documents covering such Covered
Risks or (ii) provide a written explanation as to its reasons for failing to
purchase such insurance. Notwithstanding the foregoing, with the written consent
of the Special Servicer in accordance with the Servicing Standard the Master
Servicer may waive the requirement to procure insurance covering any of the
Covered Risks if the Master Servicer determines in accordance with the Servicing
Standard that (1) insurance covering any such Covered Risks is not available at
a commercially reasonable price, or (2) based on information reasonably
available to the Master Servicer, after due inquiry, any such Covered Risks are
at that time not commonly insured against for properties similar to the
Mortgaged Property and located in or around the region in which the Mortgaged
Property is located unless the Stated Principal Balance of the Serviced Loan is
greater than $20,000,000. If the Stated Principal Balance of the Serviced Loan
is greater than $20,000,000, then the Master Servicer must determine that the
circumstances in both clauses (1) and (2) of the immediately preceding sentence
apply prior to waiving the Mortgagor's requirement to procure insurance with
respect to any Covered Risks. If the Special Servicer fails to give a response
to the Master Servicer as referenced in the second preceding sentence within ten
Business Days of the Master Servicer initially notifying the Special Servicer in
writing of such request, the Master Servicer shall promptly notify the Directing
Certificateholder of such failure of the Special Servicer to respond to such
request. If the Directing Certificateholder and/or the Special Servicer have not
responded to the Master Servicer within ten Business Days of the notice
referenced in the immediately preceding sentence, the Master Servicer shall
determine in accordance with the Servicing Standard whether to require (or not
require) the Mortgagor to maintain such insurance; provided, that during the
period that the Special Servicer and/or the Directing Certificateholder are
evaluating such insurance, none of the Master Servicer, the Special Servicer
and/or the Directing Certificateholder shall be liable for any loss related to
its failure to require a Mortgagor to maintain terrorism insurance and shall not
be in default of its obligations hereunder as a result of such failure. If the
Master Servicer requires the Mortgagor to maintain such insurance and the
Mortgagor fails to maintain such insurance, to the extent such insurance is then
reasonably available, the Master Servicer shall then procure such insurance in
accordance with the Servicing Standard and such failure by the Mortgagor shall
constitute a Servicing Transfer Event. For purposes of computing whether the
$20,000,000 threshold described herein is met for a particular Serviced Loan, if
a Serviced Loan is secured by multiple Mortgaged Properties, then the amount
subject to the $20,000,000 threshold shall be the portion of the Stated
Principal Balance of the related Serviced Loan pro rated based on an individual
Mortgaged Property's appraised value as a percentage of the total appraised
value of all of the related Mortgaged Properties.
(b) If the Master Servicer or the Special Servicer shall obtain and
maintain, or cause to be obtained and maintained, a blanket policy or master
force placed policy insuring against hazard losses on all of the Serviced Loans
or REO Properties, as applicable, that it is required to service and administer
hereunder, then, to the extent such policy (i) is obtained from a Qualified
Insurer having a financial strength or claims-paying rating no lower than "A"
from Fitch and "A" from S&P or having such other financial strength or
claims-paying ability rating as would not, as confirmed in writing by the
relevant Rating Agency, result in an Adverse Rating Event and (ii) provides
protection equivalent to the individual policies otherwise required, the Master
Servicer or Special Servicer, as the case may be, shall conclusively be deemed
to have satisfied its obligation to cause hazard insurance to be maintained on
the related Mortgaged Properties or REO Properties, as applicable. Such policy
may contain a deductible clause (not in excess of a customary amount), in which
case the Master Servicer or the Special Servicer, as appropriate, shall, if
there shall not have been maintained on the related Mortgaged Property or REO
Property a hazard insurance policy complying with the requirements of Section
3.07(a), and there shall have been one or more losses that would have been
covered by such an individual policy, promptly deposit into the Certificate
Account from its own funds the amount not otherwise payable under the blanket or
master force placed policy in connection with such loss or losses because of
such deductible clause to the extent that any such deductible exceeds the
deductible limitation that pertained to the related Serviced Loan (or, in the
absence of any such deductible limitation, the deductible limitation for an
individual policy that is consistent with the Servicing Standard). The Master
Servicer or the Special Servicer, as appropriate, shall prepare and present, on
behalf of itself, the Trustee and the Certificateholders and, in the case of the
Serviced Whole Loan, the One Stamford Forum Note B Holder, claims under any such
blanket or master forced placed policy in a timely fashion in accordance with
the terms of such policy.
(c) Each of the Master Servicer and the Special Servicer shall at
all times during the term of this Agreement (or, in the case of the Special
Servicer, at all times during the term of this Agreement during which Specially
Serviced Loans or REO Properties for which it is responsible exist as part of
the Trust Fund) keep in force with a Qualified Insurer having a financial
strength or claims-paying rating no lower than two rating categories below the
highest rated Certificates outstanding, and in any event no lower than "A" from
Fitch and "A" from S&P, a fidelity bond in such form and amount as would permit
it to be a qualified Xxxxxx Xxx seller-servicer of multifamily mortgage loans
(or in such other form and amount or issued by an insurer with such other
financial strength or claims-paying ability rating as would not result in an
Adverse Rating Event with respect to any Class of Rated Certificates (as
confirmed in writing to the Trustee by the relevant Rating Agency)). Each of the
Master Servicer and the Special Servicer shall be deemed to have complied with
the foregoing provision if an Affiliate thereof has such fidelity bond coverage
and, by the terms of such fidelity bond, the coverage afforded thereunder
extends to the Master Servicer or the Special Servicer, as the case may be. Such
fidelity bond shall provide that it may not be canceled without ten days' prior
written notice to the Trustee.
Each of the Master Servicer and the Special Servicer shall at all
times during the term of this Agreement (or, in the case of the Special
Servicer, at all times during the term of this Agreement during which Specially
Serviced Loans and/or REO Properties for which it is responsible exist as part
of the Trust Fund) also keep in force with a Qualified Insurer having a
financial strength or claims-paying rating no lower than two rating categories
below the highest rated Certificates outstanding, and in any event no lower than
"A" from Fitch and "A" from S&P, a policy or policies of insurance covering loss
occasioned by the errors and omissions of its officers and employees in
connection with its servicing obligations hereunder, which policy or policies
shall be in such form and amount as would permit it to be a qualified Xxxxxx Xxx
seller-servicer of multifamily mortgage loans (or in such other form and amount
or issued by an insurer with such other financial strength or claims-paying
rating as would not result in an Adverse Rating Event with respect to any Class
of Rated Certificates (as confirmed in writing to the Trustee by the relevant
Rating Agency)). Each of the Master Servicer and the Special Servicer shall be
deemed to have complied with the foregoing provisions if an Affiliate thereof
has such insurance and, by the terms of such policy or policies, the coverage
afforded thereunder extends to the Master Servicer or the Special Servicer, as
the case may be. Any such errors and omissions policy shall provide that it may
not be canceled without ten days' prior written notice to the Trustee. So long
as the long-term unsecured debt obligations of the Master Servicer or the
Special Servicer (or its direct or indirect parent company), as applicable, are
rated not lower than "A" from Fitch and "A" from S&P, the Master Servicer or
Special Servicer, as applicable, may self-insure with respect to either or both
of the fidelity bond coverage and the errors and omissions coverage required as
described above, in which case it shall not be required to maintain an insurance
policy with respect to such coverage.
Section 3.08 Enforcement of Alienation Clauses.
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(a) As to each Serviced Loan that contains a provision in the nature
of a (i) "due-on-sale" clause (which includes, without limitation, sales or
transfers of the Mortgaged Property (in full or in part) or the sale, transfer,
pledge or hypothecation of direct or indirect interest in the related Borrower
or its owners), which by its terms (1) provides that such Serviced Loan shall
(or may at the mortgagee's option) become due and payable upon the sale or other
transfer of an interest in the related Mortgaged Property or of a controlling
interest in the related Mortgagor; (2) provides that such Serviced Loan may not
be assumed without the consent of the mortgagee or satisfaction of certain
conditions in connection with any such sale or other transfer, for so long as
such Serviced Loan is included in the Trust Fund or (3) provides that such
Serviced Loan may be assumed or transferred without the consent of the mortgagee
provided that certain conditions set forth in the related loan documents are
satisfied, or (ii) as to each Serviced Loan that contains a provision in the
nature of a "due-on-encumbrance" clause (including, without limitation, any
mezzanine financing of the related Borrower or the related Mortgaged Property or
any sale or transfer of preferred equity in such Borrower or its direct or
indirect owners), that by its terms: (1) provides that such Serviced Loan shall
(or may at the mortgagee's option) become due and payable upon the creation of
any additional lien or other encumbrance on the related Mortgaged Property; (2)
requires the consent of the mortgagee or satisfaction of certain conditions to
the creation of any such additional lien or other encumbrance on the related
Mortgaged Property; or (3) provides that such Serviced Loan may be further
encumbered provided that certain conditions set forth in the loan documents have
been satisfied, each of the Master Servicer and the Special Servicer shall, on
behalf of the Trustee as the mortgagee of record, as to those Serviced Loans it
is obligated to service hereunder, exercise (or waive its right to exercise) any
right it may have with respect to such Serviced Loan (x) to accelerate the
payments thereon, (y) to withhold its consent to any such sale or other
transfer, in a manner consistent with the Servicing Standard or (z) determine
whether the conditions set forth in clause (a)(i)(3) above have been satisfied.
Notwithstanding anything to the contrary contained herein, neither
the Master Servicer nor the Special Servicer shall waive any right it has, or
grant any consent it is otherwise entitled to withhold, under any related
"due-on-sale" or "due-on-encumbrance" clause (including, but not limited to,
making any determination that the conditions set forth in clauses (a)(i)(3) and
(a)(ii)(3) have been satisfied), unless both the Master Servicer and the Special
Servicer shall have followed the procedures set forth for those Serviced Loans
in the manner set forth in the immediately below clauses (i) through (vi):
(i) The Master Servicer shall not waive any right it has, or grant
any consent that it may otherwise withhold under any related "due-on-sale"
or "due-on-encumbrance" clause (including, but not limited to, making any
determination that the conditions set forth in clauses (a)(i)(3) and
(a)(ii)(3) have been satisfied) without first obtaining the consent of the
Special Servicer. The Special Servicer's consent shall be deemed given if
the Master Servicer shall have provided the Special Servicer written
notice of the matter together with all of the information set forth in the
immediately succeeding sentence and all information reasonably requested
by the Special Servicer and the Special Servicer shall not have responded
in writing, via fax or e mail within 15 Business Days of such request
(subject to any extensions of applicable time periods required if the
Special Servicer is required by this Agreement to seek the consent of
other third parties). In connection with the request set forth above, the
Master Servicer shall provide to the Special Servicer written notice of
the matter, a written explanation of the surrounding circumstances, such
additional information as the Special Servicer shall reasonably request
and a request for approval by the Special Servicer.
(ii) The Special Servicer shall not waive any right it has, or grant
any consent that it may otherwise withhold under any related "due-on-sale"
or "due-on-encumbrance" clause without obtaining the consent of the
Directing Certificateholder for (a) any Non-Partitioned Loan and/or a Post
CAP Serviced Whole Loan that is a Performing Serviced Loan or (b) for any
Specially Serviced Loan that is a Non-Partitioned Loan and/or a Post CAP
Serviced Whole Loan. Consent by the Directing Certificateholder shall be
deemed given if the Special Servicer shall have provided the Directing
Certificateholder written notice of the matter together with all of the
information set forth in the immediately succeeding sentence and the
Directing Certificateholder shall not have responded in writing, via fax
or e mail within ten Business Days of such request. In connection with the
request set forth above, the Special Servicer shall provide to the
Directing Certificateholder written notice of the matter, a written
explanation of the surrounding circumstances, such additional information
as the Directing Certificateholder shall reasonably request and a request
for approval by the Directing Certificateholder.
(iii) With respect to the Serviced Whole Loan for which a related
Control Appraisal Period does not exist, (A) the Master Servicer with
respect to those time periods when such Loan is a Performing Serviced Loan
shall not waive any right that it may have, or grant any consent that it
may otherwise withhold under any related "due-on-sale" or
"due-on-encumbrance" clause without obtaining the consent of the Special
Servicer, which consent shall not be given without the Special Servicer
first obtaining the consent of the One Stamford Forum Controlling Holder,
and (B) the Special Servicer with respect to those time periods when
either such Loan is a Specially Serviced Loan shall not waive any right
that it may have, or grant any consent that it may otherwise withhold
under any related "due-on-sale" or "due-on-encumbrance" clause without
obtaining the consent of the One Stamford Forum Controlling Holder.
Consent by a One Stamford Forum Controlling Holder shall be deemed given
if the Master Servicer or Special Servicer, as applicable, shall have
provided such One Stamford Forum Controlling Holder written notice of the
matter together with all of the information set forth in the last sentence
of the first paragraph of clause (ii) above and such One Stamford Forum
Controlling Holder shall not have responded in writing, via fax or email
within ten Business Days of such request.
(iv) Notwithstanding anything to the contrary contained herein, the
Master Servicer shall not permit any such transfer, assumption or further
encumbrance of such Serviced Loan or related Mortgaged Property or
interests in the related Borrower, if the Special Servicer, in accordance
with the Servicing Standard, (a) notifies the Master Servicer of its
determination with respect to any Serviced Loan (which by its terms
permits the transfer, assumption or further encumbrance without mortgagee
consent provided certain conditions are satisfied and the determination as
to whether any such conditions are satisfied would require the mortgagee
to exercise the judgment of a reasonable prudent commercial lender) that
the conditions required under the related loan documents have not been
satisfied or (b) objects in writing to the Master Servicer's determination
that such conditions have been satisfied with respect to any such Serviced
Loan.
(v) Notwithstanding the foregoing, solely with respect to the
consent or waiver of any "due-on-sale" clause as described in Section
3.08(a), if any Mortgage Loan with an outstanding principal balance of
greater than $5,000,000:
(1) represents greater than 5% of the then outstanding
principal balance of the Mortgage Pool;
(2) has an outstanding principal balance of greater than
$20,000,000; or
(3) is one of the ten largest Mortgage Loans in the Trust Fund
based on outstanding principal balance,
then neither the Master Servicer nor Special Servicer shall waive any right it
has, or grant any consent it is otherwise entitled to withhold, under any
related "due-on-sale" clause until it has received written confirmation from
each Rating Agency that such action would not result in the qualification (if
applicable), downgrade or withdrawal of the rating then assigned by such Rating
Agency to any Class of Certificates.
(vi) Notwithstanding the foregoing, solely with respect to the
consent or waiver of any "due-on-encumbrance" clause as described in
Section 3.08(a), if any Mortgage Loan:
(1) represents greater than 2% of the then outstanding
principal balance of the Mortgage Pool, or
(2) is at the time one of the ten largest Mortgage Loans (by
outstanding principal balance) in the Mortgage Pool or has an
outstanding principal balance of greater than $20,000,000, or
(3) after taking into consideration any additional
indebtedness secured by the related Mortgaged Property, the
loan-to-value ratio for such Mortgage Loan would be greater than 85%
or the debt service coverage ratio would be less than 1.20x,
then neither the Master Servicer nor the Special Servicer, as the case may be,
shall waive any right it has, or grant any consent it is otherwise entitled to
withhold, under any related "due-on-encumbrance" clause governing the transfer
of any Mortgaged Property that secures, or controlling interests in any
Mortgagor under, a Cross-Collateralized Set unless the Master Servicer or
Special Servicer, as applicable, shall have obtained written confirmation from
each Rating Agency that such action shall not result in a qualification (if
applicable), downgrade or withdrawal of the rating then assigned by such Rating
Agency to any Class of Certificates.
(vii) In the event that the Master Servicer or Special Servicer
intends or is required, in accordance with the preceding clauses, by the
loan documents or applicable law, to permit the transfer of any Mortgaged
Property, the Master Servicer or the Special Servicer, as the case may be,
may, if consistent with the Servicing Standard, enter into a substitution
of liability agreement, pursuant to which the original Mortgagor and any
original guarantors are released from liability, and the transferee and
any new guarantors are substituted therefor and become liable under the
Mortgage Note and any related guaranties and, in connection therewith, may
require from the related Mortgagor a reasonable and customary fee for the
additional services performed by it, together with reimbursement for any
related costs and expenses incurred by it. In addition, the Master
Servicer or the Special Servicer, as the case may be, if consistent with
the Servicing Standard, shall require as a condition of its approval that
the related Mortgagor pay all costs associated with such transfer. The
Master Servicer or the Special Servicer, as the case may be, shall
promptly notify the Trustee in writing of any such agreement and forward
the original thereof to the Trustee for inclusion in the related Mortgage
File.
(b) In connection with any permitted assumption of any Serviced Loan
or waiver of a "due-on-sale" or "due-on-encumbrance" clause thereunder, the
Master Servicer (in the case of a Performing Serviced Loan) or the Special
Servicer (in the case of a Specially Serviced Loan) shall prepare all documents
necessary and appropriate for such purposes and shall coordinate with the
related Mortgagor for the due execution and delivery of such documents.
(c) If the Master Servicer or the Special Servicer collects an
assumption fee or an assumption application fee in connection with any transfer
or proposed transfer of any interest in a Mortgagor or a Mortgaged Property,
then the Master Servicer or the Special Servicer, as applicable, will apply that
fee to cover the costs and expenses associated with that transfer or proposed
transfer that are not otherwise paid by the related Mortgagor and that would
otherwise be payable or reimbursable out of the Trust Fund, including any Rating
Agency fees and expenses. Any remaining portion of such assumption fee (such
remaining portion, a "Net Assumption Fee") or of such assumption application fee
(such remaining portion, a "Net Assumption Application Fee") will be applied as
additional compensation to the Master Servicer or the Special Servicer in
accordance with Section 3.11.
Section 3.09 Realization Upon Defaulted Serviced Loans.
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(a) The Special Servicer shall, subject to Sections 3.09(b),
3.09(c), and 3.09(d), exercise reasonable efforts, consistent with the Servicing
Standard, to foreclose upon or otherwise comparably convert the ownership of
properties and other collateral securing such of the Serviced Loans as come into
and continue in default and as to which no satisfactory arrangements can be made
for collection of delinquent payments, including pursuant to Section 3.20;
provided that neither the Master Servicer nor the Special Servicer shall, with
respect to any ARD Loan after its Anticipated Repayment Date, take any
enforcement action with respect to the payment of Excess Interest (other than
the making of requests for its collection) unless (i) the taking of an
enforcement action with respect to the payment of other amounts due under such
Serviced Loan is, in the good faith and reasonable judgment of the Special
Servicer, and without regard to such Excess Interest, also necessary,
appropriate and consistent with the Servicing Standard, or (ii) all other
amounts due under such Serviced Loan have been paid, the payment of such Excess
Interest has not been forgiven in accordance with Section 3.20 and, in the good
faith and reasonable judgment of the Special Servicer, the Liquidation Proceeds
expected to be recovered in connection with such enforcement action will cover
the anticipated costs of such enforcement action and, if applicable, any
associated Advance Interest. In connection with the foregoing, in the event of a
default under any Serviced Loan or Cross-Collateralized Set that is secured by
real properties located in multiple states, and such states include California
or another state with a statute, rule or regulation comparable to California's
"one action rule", then the Special Servicer shall consult Independent counsel
regarding the order and manner in which the Special Servicer should foreclose
upon or comparably proceed against such properties. The reasonable costs of such
consultation shall be paid by, and reimbursable to, the Master Servicer as a
Servicing Advance. In addition, all other costs and expenses incurred in any
foreclosure sale or similar proceeding shall be paid by, and reimbursable to,
the Special Servicer as a Servicing Advance. Nothing contained in this Section
3.09 shall be construed so as to require the Special Servicer, on behalf of the
Trust, to make a bid on any Mortgaged Property at a foreclosure sale or similar
proceeding that is in excess of the fair market value of such property, as
determined by such Special Servicer taking into account the factors described in
Section 3.18 and the results of any Appraisal obtained pursuant to the following
sentence or otherwise, all such cash bids to be made in a manner consistent with
the Servicing Standard. If and when the Special Servicer deems it necessary in
accordance with the Servicing Standard for purposes of establishing the fair
market value of any Mortgaged Property securing a Defaulted Serviced Loan,
whether for purposes of bidding at foreclosure or otherwise, the Special
Servicer is authorized to have an Appraisal completed with respect to such
property (the cost of which appraisal shall be covered by, and be reimbursable
as, a Servicing Advance).
(b) Notwithstanding any other provision of this Agreement, no
Mortgaged Property shall be acquired by the Special Servicer on behalf of the
Trust (and in the case of a Mortgaged Property securing the Serviced Whole Loan,
on behalf of the One Stamford Forum Note B Holder) under such circumstances, in
such manner or pursuant to such terms as would (i) cause such Mortgaged Property
to fail to qualify as "foreclosure property" within the meaning of Section
860G(a)(8) of the Code (unless the portion of such REO Property that is not
treated as "foreclosure property" and that is held by REMIC I at any given time
constitutes not more than a de minimis amount of the assets of such REMIC within
the meaning of Treasury Regulations Sections 1.860D-1(b)(3)(i) and (ii)), or
(ii) except as permitted by Section 3.17(a), subject the Trust (and in the case
of a Mortgaged Property securing the Serviced Whole Loan, the One Stamford Forum
Note B Holder) to the imposition of any federal income or prohibited transaction
taxes under the Code. Subject to the foregoing, however, a Mortgaged Property
may be acquired through a single member limited liability company. In addition,
except as permitted under Section 3.17, the Special Servicer shall not acquire
any personal property on behalf of the Trust pursuant to this Section 3.09 (with
the exception of cash or cash equivalents pledged as collateral for a Serviced
Loan) unless either:
(i) such personal property is incident to real property (within the
meaning of Section 856(e)(1) of the Code) so acquired by the Special
Servicer; or
(ii) the Special Servicer shall have obtained an Opinion of Counsel
(the cost of which shall be covered by, and reimbursable as, a Servicing
Advance) to the effect that the holding of such personal property as part
of the Trust Fund will not cause either of REMIC I or REMIC II to fail to
qualify as a REMIC at any time that any Certificate is outstanding or,
subject to Section 3.17, cause the imposition of a tax on the Trust under
the REMIC Provisions.
(c) Notwithstanding the foregoing provisions of this Section 3.09,
neither the Master Servicer nor the Special Servicer shall, on behalf of the
Trust (and in the case of a Mortgaged Property securing the Serviced Whole Loan,
on behalf of the One Stamford Forum Note B Holder), obtain title to a Mortgaged
Property by foreclosure, deed-in-lieu of foreclosure or otherwise, or take any
other action with respect to any Mortgaged Property, if, as a result of any such
action, the Trustee, on behalf of the Certificateholders (and in the case of a
Mortgaged Property securing the Serviced Whole Loan, on behalf of the One
Stamford Forum Note B Holder), could, in the reasonable, good faith judgment of
the Special Servicer, exercised in accordance with the Servicing Standard, be
considered to hold title to, to be a "mortgagee-in-possession" of, or to be an
"owner" or "operator" of such Mortgaged Property within the meaning of CERCLA or
any comparable law, unless:
(i) the Special Servicer has previously determined in accordance
with the Servicing Standard, based on a Phase I Environmental Assessment
(and any additional environmental testing that the Special Servicer deems
necessary and prudent) of such Mortgaged Property conducted by an
Independent Person who regularly conducts Phase I Environmental
Assessments and performed during the 12-month period preceding any such
acquisition of title or other action, that the Mortgaged Property is in
compliance with applicable environmental laws and regulations and there
are no circumstances or conditions present at the Mortgaged Property
relating to the use, management or disposal of Hazardous Materials for
which investigation, testing, monitoring, containment, clean-up or
remediation could be required under any applicable environmental laws and
regulations; or
(ii) in the event that the determination described in clause (c)(i)
above cannot be made, the Special Servicer has previously determined in
accordance with the Servicing Standard, on the same basis as described in
clause (c)(i) above, that it would maximize the recovery to the
Certificateholders, or if the Serviced Whole Loan is affected, to the
Certificateholders and the One Stamford Forum Note B Holder (as a
collective whole taking into account the subordination of the One Stamford
Forum Note B), on a net present value basis (the relevant discounting of
anticipated collections that will be distributable to Certificateholders
to be performed at the related Net Mortgage Rate) to acquire title to or
possession of the Mortgaged Property and to take such remedial, corrective
and/or other further actions as are necessary to bring the Mortgaged
Property into compliance with applicable environmental laws and
regulations and to appropriately address any of the circumstances and
conditions referred to in clause (c)(i) above.
Any such determination by the Special Servicer contemplated by
clause (i) or clause (ii) of the preceding paragraph shall be evidenced by an
Officer's Certificate to such effect delivered to the Trustee, the Master
Servicer, the Directing Certificateholder and the One Stamford Forum Note B
Holder (if the Serviced Whole Loan is involved), specifying all of the bases for
such determination, such Officer's Certificate to be accompanied by all related
environmental reports. The cost of such Phase I Environmental Assessment and any
such additional environmental testing shall be advanced by the Master Servicer
at the direction of the Special Servicer given in accordance with the Servicing
Standard; provided, however, that the Master Servicer shall not be obligated in
connection therewith to advance any funds that, if so advanced, would constitute
a Nonrecoverable Servicing Advance. Amounts so advanced shall be subject to
reimbursement as Servicing Advances in accordance with Section 3.05(a). The cost
of any remedial, corrective or other further action contemplated by clause (ii)
of the preceding paragraph shall be payable out of the Certificate Account or,
if the Serviced Whole Loan is involved, out of the Serviced Whole Loan Custodial
Account, pursuant to Section 3.05.
(d) If neither of the conditions set forth in clauses (i) and (ii)
of the first paragraph of Section 3.09(c) has been satisfied with respect to any
Mortgaged Property securing a Defaulted Serviced Loan, the Special Servicer
shall take such action as is in accordance with the Servicing Standard (other
than proceeding against the Mortgaged Property) and, at such time as it deems
appropriate, may, on behalf of the Trust, and, if the Serviced Whole Loan is
involved, the One Stamford Forum Note B Holder (as a collective whole taking
into account the subordination of the One Stamford Forum Note B), release all or
a portion of such Mortgaged Property from the lien of the related Mortgage.
(e) The Special Servicer shall report to the Trustee, the Master
Servicer, the One Stamford Forum Note B Holder (if the Serviced Whole Loan is
involved), and the Directing Certificateholder monthly in writing as to any
actions taken by the Special Servicer with respect to any Mortgaged Property as
to which neither of the conditions set forth in clauses (i) and (ii) of the
first paragraph of Section 3.09(c) has been satisfied, in each case until the
earliest to occur of satisfaction of either of such conditions, release of the
lien of the related Mortgage on such Mortgaged Property and the related Loan's
becoming a Corrected Serviced Loan.
(f) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standard, the advisability of seeking to obtain a
deficiency judgment if the state in which the Mortgaged Property is located and
the terms of the subject Serviced Loan permit such an action and shall, in
accordance with the Servicing Standard, seek such deficiency judgment if it
deems advisable.
(g) Annually in each January, commencing in January 2007, the Master
Servicer (with information provided by the Special Servicer) shall file with the
IRS, on a timely basis, the information returns with respect to the reports of
foreclosures and abandonments and reports relating to any cancellation of
indebtedness income with respect to any Specially Serviced Loans and REO
Properties required by Sections 6050H (as applicable), 6050J and 6050P of the
Code. Contemporaneously, the Master Servicer shall deliver to the Trustee an
Officer's Certificate stating that all such information returns relating to
Specially Serviced Loans and REO Properties that were required to be filed
during the prior 12 months have been properly completed and timely provided to
the IRS. The Master Servicer shall prepare and file the information returns with
respect to the receipt of any mortgage interest received in a trade or business
from individuals with respect to any Serviced Loan as required by Section 6050H
of the Code. All information returns shall be in form and substance sufficient
to meet the reporting requirements imposed by the relevant sections of the Code.
(h) As soon as the Special Servicer makes a Final Recovery
Determination with respect to any Serviced Loan or REO Property, it shall
promptly notify the Trustee, the Master Servicer, the Directing
Certificateholder and the One Stamford Forum Note B Holder (if the Serviced
Whole Loan is involved). The Special Servicer shall maintain accurate records,
prepared by a Servicing Officer, of each such Final Recovery Determination (if
any) and the basis thereof. Each such Final Recovery Determination (if any)
shall be evidenced by an Officer's Certificate delivered to the Trustee and the
Master Servicer no later than the third Business Day following such Final
Recovery Determination.
Section 3.10 Trustee to Cooperate; Release of Mortgage Files.
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(a) Upon the payment in full of any Serviced Loan, or the receipt by
the Master Servicer of a notification that payment in full shall be escrowed in
a manner customary for such purposes, the Master Servicer shall immediately
notify the Trustee and the One Stamford Forum Note B Holder (if the Serviced
Whole Loan is involved), and request delivery of the related Mortgage File by
delivering thereto a Request for Release in the form of Exhibit D that shall be
accompanied by the form of any release or discharge to be executed by the
Trustee. Any such Request for Release shall include a statement to the effect
that all amounts received or to be received in connection with such payment that
are required to be deposited into the Certificate Account pursuant to Section
3.04(a) have been or will be so deposited. Upon receipt of such notice and
request conforming in all material respects to the provisions hereof, the
Trustee shall promptly release, or cause any related Custodian to release, the
related Mortgage File to the Master Servicer or Special Servicer, as applicable.
If the Mortgage has been recorded in the name of MERS or its designee, the
Master Servicer shall take all necessary action to reflect the release of the
Mortgage on the records of MERS. No expenses incurred in connection with any
instrument of satisfaction or deed of reconveyance shall be chargeable to the
Certificate Account or if the Serviced Whole Loan is involved, the Serviced
Whole Loan Custodial Account.
(b) If from time to time, and as appropriate for servicing or
foreclosure of any Serviced Loan, the Master Servicer or the Special Servicer
shall otherwise require any Mortgage File (or any portion thereof), then, upon
request of the Master Servicer or the Special Servicer and receipt therefrom of
a Request for Release in the form of Exhibit D attached hereto signed by a
Servicing Officer thereof, the Trustee shall release, or cause any related
Custodian to release, such Mortgage File (or portion thereof) to the Master
Servicer or the Special Servicer, as the case may be. Upon return of such
Mortgage File (or portion thereof) to the Trustee or the related Custodian, or
the delivery to the Trustee of a certificate of a Servicing Officer of the
Special Servicer stating that such Serviced Loan was liquidated and that all
amounts received or to be received in connection with such liquidation that are
required to be deposited into the Certificate Account pursuant to Section
3.04(a) or, if the Serviced Whole Loan is involved, into the Serviced Whole Loan
Custodial Account pursuant to Section 3.04(e), have been or will be so
deposited, or that such Serviced Loan has become an REO Property, the Request
for Release shall be released by the Trustee to the Master Servicer or the
Special Servicer, as applicable.
(c) Within five Business Days of the Special Servicer's request
therefor (or, if the Special Servicer notifies the Trustee of an exigency,
within such shorter period as is reasonable under the circumstances), the
Trustee shall execute and deliver to the Special Servicer, in the form supplied
to the Trustee, as applicable, by the Special Servicer, any court pleadings,
requests for trustee's sale or other documents reasonably necessary to the
foreclosure or trustee's sale in respect of a Mortgaged Property or to any legal
action brought to obtain judgment against any Mortgagor on the Mortgage Note or
Mortgage or to obtain a deficiency judgment, or to enforce any other remedies or
rights provided by the Mortgage Note or Mortgage or otherwise available at law
or in equity or to defend any legal action or counterclaim filed against the
Trust, or if the Serviced Whole Loan is involved, against the One Stamford Forum
Note B Holder, the Master Servicer or the Special Servicer; provided that the
Trustee may alternatively execute and deliver to the Special Servicer, in the
form supplied to the Trustee by the Special Servicer, a limited power of
attorney, subject to the provisions of Section 3.01(c), issued in favor of the
Special Servicer and empowering the Special Servicer to execute and deliver any
or all of such pleadings or documents on behalf of the Trustee (however, the
Trustee shall not be liable for any misuse of such power of attorney by such
Special Servicer). Together with such pleadings or documents (or such power of
attorney empowering the Special Servicer to execute the same on behalf of the
Trustee), the Special Servicer shall deliver to the Trustee an Officer's
Certificate requesting that such pleadings or documents (or such power of
attorney empowering the Special Servicer to execute the same on behalf of the
Trustee) be executed by the Trustee and certifying as to the reason such
pleadings or documents are required and that the execution and delivery thereof
by the Trustee (or by the Special Servicer on behalf of the Trustee) will not
invalidate or otherwise affect the lien of the Mortgage, except for the
termination of such a lien upon completion of the foreclosure or trustee's sale.
If the Serviced Whole Loan is involved, such documents and pleadings shall also
be delivered by the Special Servicer to the One Stamford Forum Note B Holder.
(d) Each of the Master Servicer and the Special Servicer, as
applicable, is authorized for the benefit of the Certificateholders and, if
applicable, the One Stamford Forum Note B Holder, to direct, manage, prosecute
and/or defend any and all claims and litigation relating to (a) the enforcement
of the obligations of the Borrower or guarantor under any loan documents and (b)
any action brought by the Borrower against the Trust Fund. Such enforcement
shall be carried out in accordance with the terms of this Agreement, including,
without limitation, the Servicing Standard; it being expressly understood that
(i) the Master Servicer shall not be liable for such enforcement by the Special
Servicer and (ii) the Special Servicer shall not be liable for such enforcement
by the Master Servicer.
Section 3.11 Servicing Compensation; Interest on Servicing Advances;
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Payment of Certain Expenses; Obligations of the Trustee Regarding Back-up
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Servicing Advances.
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(a) As compensation for its activities hereunder, the Master
Servicer shall be entitled to receive the Master Servicing Fee with respect to
each Loan (including each Specially Serviced Loan) and each related REO Serviced
Loan. As to each such Loan and REO Serviced Loan, for each calendar month
(commencing with September 2006) or any applicable portion thereof, the Master
Servicing Fee shall accrue at the related Master Servicing Fee Rate on the same
principal amount, and without giving effect to any Excess Interest that may
accrue on any ARD Loan after its Anticipated Repayment Date, as interest accrues
from time to time during such calendar month (or portion thereof) on such Loan
or is deemed to accrue from time to time during such calendar month (or portion
thereof) on such REO Serviced Loan, as the case may be, and shall be calculated
on the same Interest Accrual Basis as is applicable for such Loan or REO
Serviced Loan, as the case may be. The Master Servicing Fee with respect to any
Loan or REO Serviced Loan shall cease to accrue if a Liquidation Event occurs in
respect thereof. Master Servicing Fees earned with respect to any such Loan or
REO Serviced Loan shall be payable monthly from payments of interest on such
Loan or REO Revenues allocable as interest on such REO Serviced Loan, as the
case may be. The Master Servicer shall be entitled to recover unpaid Master
Servicing Fees in respect of any Loan or REO Serviced Loan out of the portion of
any related Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds
allocable as interest on such Loan or REO Serviced Loan, as the case may be. The
right to receive the Master Servicing Fee may not be transferred in whole or in
part except in connection with the transfer of all of the Master Servicer's
responsibilities and obligations under this Agreement and except as otherwise
expressly provided in the following paragraph.
(b) The Master Servicer shall be entitled to receive the following
items as additional servicing compensation, which shall be paid prior to
remittance of such amounts, if any, which are required to be paid to the One
Stamford Forum Note B Holder under any Intercreditor Agreement (the following
items, collectively, "Additional Master Servicing Compensation"):
(i) any and all Net Default Charges, Net Assumption Application
Fees, Net Modification Application Fees and earnout fees collected with
respect to a Performing Serviced Loan;
(ii) 50% of any and all Net Assumption Fees actually paid by a
Mortgagor with respect to a Performing Serviced Loan;
(iii) 50% of any and all Net Modification Fees, extension fees,
consent fees and waiver fees actually paid by a Mortgagor with respect to
a Performing Serviced Loan for which Special Servicer approval is
required;
(iv) any and all charges for beneficiary statements or demands,
amounts collected for checks returned for insufficient funds and other
loan processing fees actually paid by a Mortgagor with respect to a
Performing Serviced Loan and, in the case of checks returned for
insufficient funds, with respect to a Specially Serviced Loan;
(v) any and all Prepayment Interest Excess collected on the Mortgage
Loans;
(vi) interest or other income earned on deposits in the Investment
Accounts maintained by the Master Servicer, in accordance with Section
3.06(b) (but only to the extent of the Net Investment Earnings, if any,
with respect to any such Investment Account for each Collection Period
and, further, in the case of a Servicing Account or Reserve Account, only
to the extent such interest or other income is not required to be paid to
any Mortgagor under applicable law or under the related Mortgage); and
(vii) 50% of any and all substitution fees (net of any costs
incurred in connection with any substitution) collected on the Serviced
Loans.
Notwithstanding the foregoing with respect to any 50% sharing of
fees referenced in this Section 3.11(b), the Master Servicer shall be entitled
to all such fees if with respect to the activity related to any such fee the
Master Servicer is not required to seek the consent and/or approval of the
Special Servicer pursuant to this Agreement.
To the extent that any of the amounts described in the preceding
paragraph are collected by the Special Servicer, the Special Servicer shall
promptly pay such amounts to the Master Servicer.
(c) As compensation for its activities hereunder, the Special
Servicer shall be entitled to receive monthly the Special Servicing Fee with
respect to each Specially Serviced Loan and each REO Serviced Loan for which it
is responsible. As to each Specially Serviced Loan and REO Serviced Loan, for
any particular calendar month or applicable portion thereof, the Special
Servicing Fee shall accrue at the Special Servicing Fee Rate on the same
principal amount as interest accrues from time to time during such calendar
month (or portion thereof) on such Specially Serviced Loan or is deemed to
accrue from time to time during such calendar month (or portion thereof) on such
REO Serviced Loan, as the case may be, and shall be calculated on the same
Interest Accrual Basis as is applicable for such Specially Serviced Loan or REO
Serviced Loan, as the case may be. The Special Servicing Fee with respect to any
Specially Serviced Loan or REO Serviced Loan shall cease to accrue as of the
date a Liquidation Event occurs in respect thereof or, in the case of a
Specially Serviced Loan, as of the date it becomes a Corrected Serviced Loan.
Earned but unpaid Special Servicing Fees with respect to Specially Serviced
Loans and REO Serviced Loans shall be payable monthly out of general collections
on the Loans and any REO Properties on deposit in the Certificate Account
pursuant to Section 3.05(a); provided, however, if the Serviced Whole Loan is
involved, first out of funds on deposit in the Serviced Whole Loan Custodial
Account pursuant to Section 3.05(f).
As further compensation for its activities hereunder, the Special
Servicer shall be entitled to receive the Workout Fee with respect to each
Corrected Serviced Loan. As to each Corrected Serviced Loan, the Workout Fee
shall be payable out of, and shall be calculated by application of the Workout
Fee Rate to, each payment of interest (other than Default Interest and Excess
Interest) and principal received from the related Mortgagor on such Serviced
Loan for so long as it remains a Corrected Serviced Loan. The Workout Fee with
respect to any such Corrected Serviced Loan will cease to be payable if a new
Servicing Transfer Event occurs with respect thereto or if the related Mortgaged
Property becomes an REO Property; provided that a new Workout Fee would become
payable if and when the subject Serviced Loan again became a Corrected Serviced
Loan. If the Special Servicer is terminated, including pursuant to Section 3.23,
or resigns in accordance with Section 6.04, it shall retain the right to receive
any and all Workout Fees payable in respect of (i) any Serviced Loans serviced
by it that became Corrected Serviced Loans during the period that it acted as
Special Servicer and that were still Corrected Serviced Loans at the time of
such termination or resignation and (ii) any Specially Serviced Loans for which
such Special Servicer has resolved the circumstances and/or conditions causing
any such Serviced Loan to be a Specially Serviced Loan, but that had not as of
the time the Special Servicer was terminated become a Corrected Serviced Loan
solely because the related Mortgagor had not made three consecutive timely
Monthly Payments and that subsequently becomes a Corrected Serviced Loan as a
result of the related Mortgagor making such three consecutive timely monthly
payments (and the successor to the Special Servicer shall not be entitled to any
portion of such Workout Fees), in each case until the Workout Fee for any such
loan ceases to be payable in accordance with the preceding sentence; provided
that, in the case of any Specially Serviced Loan described in clause (ii) of
this sentence, the terminated Special Servicer shall immediately deliver the
related Servicing File to the Master Servicer, and the Master Servicer shall
(without further compensation) monitor that all conditions precedent to such
Serviced Loan's becoming a Corrected Serviced Loan are satisfied and, further,
shall immediately transfer such Servicing File to the new Special Servicer if
and when it becomes apparent to the Master Servicer that such conditions
precedent will not be satisfied.
As further compensation for its activities hereunder, the Special
Servicer shall also be entitled to receive a Liquidation Fee with respect to
each Specially Serviced Loan or REO Serviced Loan as to which it receives any
full, partial or discounted payoff from the related Mortgagor or any Insurance
Proceeds, Condemnation Proceeds or Liquidation Proceeds. Notwithstanding the
foregoing and for the avoidance of doubt, no Liquidation Fee shall be payable in
connection with: (a) the purchase of a Defaulted Serviced Loan by the Majority
Certificateholder of the Controlling Class pursuant to any applicable purchase
right set forth in Section 3.18(c) or (l) or with respect to a purchase of a
related Defaulted Serviced Loan at its fair value as determined in Section 3.18,
unless such purchase is by an assignee of the Majority Certificateholder of the
Controlling Class or the Special Servicer, such assignee is not an affiliate of
the Majority Certificateholder of the Controlling Class or the Special Servicer,
such assignment is for no material consideration and such purchase occurs or
purchase right is exercised more than 90 days from the date that the Special
Servicer has initially determined the fair value of the Mortgage Loan; (b) the
purchase of any Mortgage Loan by the Whole Loan Purchase Option Holder (or its
designee), the holder of a subordinate note or a Mezzanine Loan pursuant to a
purchase option contained in the related intercreditor agreement unless such
purchase occurs or purchase right is exercised more than 90 days from the date
that the Mortgage Loan becomes a Specially Serviced Loan; (c) the purchase
option of the Majority Certificateholder of the Controlling Class, the Master
Servicer or the Special Servicer pursuant to Section 9.01; or (d) the repurchase
by the Mortgage Loan Seller of a Mortgage Loan so required to be repurchased by
it pursuant to Section 4 of the Mortgage Loan Purchase and Sale Agreement and
Section 2.03 within the time frame set forth in the Initial Resolution Period
and/or the Resolution Extension Period (if applicable); provided that such time
frame shall never be less than 90 days from the date that the Mortgage Loan
Seller was first notified of its obligation to repurchase, provided, further,
that such purchase occurs within 90 days after the date that the Mortgage Loan
Seller was first notified of its obligation to repurchase such Mortgage Loan.
As to each such Specially Serviced Loan or REO Serviced Loan, the
Liquidation Fee shall be payable out of, and shall be calculated by application
of the Liquidation Fee Rate to, any such full, partial or discounted payoff,
Condemnation Proceeds and/or Liquidation Proceeds received or collected in
respect thereof (other than any portion of such payment or proceeds that
represents Default Charges, Excess Interest or a Prepayment Premium). The
Liquidation Fee with respect to any such Specially Serviced Loan will not be
payable if such Serviced Loan becomes a Corrected Serviced Loan.
The Special Servicer's right to receive any Special Servicing Fee,
Workout Fee and/or Liquidation Fee to which it is entitled may not be
transferred in whole or in part except in connection with the transfer of all of
the Special Servicer's responsibilities and obligations under this Agreement and
except as otherwise expressly provided herein.
(d) The Special Servicer shall be entitled to receive the following
items as additional special servicing compensation, which shall be paid prior to
remittance of such amounts, if any, which are required to be paid to the One
Stamford Forum Note B Holder under any Intercreditor Agreement (the following
items, collectively, the "Additional Special Servicing Compensation"):
(i) any and all Net Default Charges collected with respect to a
Specially Serviced Loan or an REO Serviced Loan;
(ii) any and all Net Assumption Fees, Net Assumption Application
Fees, Net Modification Fees, Net Modification Application Fees, extension
fees, consent fees, waiver fees, earnout fees, late payment charges and
charges for beneficiary statements or demands that are actually received
on or with respect to a Specially Serviced Loan or an REO Serviced Loan;
(iii) 50% of any and all Net Assumption Fees, modification fees,
extension fees, consent fees and waiver fees that are actually received on
or with respect to a Performing Serviced Loan;
(iv) interest or other income earned on deposits in the Special
Servicer's applicable REO Account in accordance with Section 3.06(b) (but
only to the extent of the Net Investment Earnings, if any, with respect to
such REO Account for each Collection Period); and
(v) 50% of any and all substitution fees (net of any costs incurred
in connection with any substitution) collected on the Serviced Loans.
Notwithstanding the foregoing with respect to the fees referenced in
the immediately preceding clauses (iii) and (v), the Special Servicer shall not
be entitled to such fees unless the Master Servicer was required to seek the
approval or consent of the Special Servicer pursuant to this Agreement with
respect to any consent, extension, modification or waiver related to any such
fee.
To the extent that any of the amounts described in the preceding
paragraph are collected by the Master Servicer with respect to a Specially
Serviced Loan, the Master Servicer shall promptly pay such amounts to the
Special Servicer and shall not be required to deposit such amounts in the
Certificate Account or if the Serviced Whole Loan is involved, in the Serviced
Whole Loan Custodial Account.
(e) The Master Servicer and the Special Servicer shall each be
required (subject to Section 3.11(h)) to pay out of its own funds all expenses
incurred by it in connection with its servicing activities hereunder (including
payment of any amounts due and owing to any Sub-Servicers retained by it
(including any termination fees) and the premiums for any blanket policy or the
standby fee or similar premium, if any, for any master force placed policy
obtained by it insuring against hazard losses pursuant to Section 3.07(b)), if
and to the extent such expenses are not payable directly out of the Certificate
Account, the Serviced Whole Loan Custodial Account, the Reserve Accounts or an
REO Account, and neither the Master Servicer nor the Special Servicer shall be
entitled to reimbursement for any such expense incurred by it except as
expressly provided in this Agreement. If the Master Servicer is required to make
any Servicing Advance hereunder at the direction of the Special Servicer in
accordance with Section 3.03(c), Section 3.19 or otherwise, the Special Servicer
shall promptly provide the Master Servicer with such documentation regarding the
subject Servicing Advance as the Master Servicer may reasonably request.
(f) If the Master Servicer is required under this Agreement to make
a Servicing Advance, but does not do so within ten days after such Advance is
required to be made, the Trustee shall, if it has actual knowledge of such
failure on the part of the Master Servicer, give notice of such failure to the
Master Servicer. If such Advance is not made by the Master Servicer within three
Business Days after such notice, then (subject to Section 3.11(h)) the Trustee
shall make such Advance. Any failure by the Master Servicer to make a Servicing
Advance it is required to make hereunder shall constitute an Event of Default by
the Master Servicer, subject to and as provided in Section 7.01(a).
(g) The Master Servicer, the Special Servicer and the Trustee shall
each be entitled to receive interest at the Reimbursement Rate in effect from
time to time, accrued on the amount of each Advance made thereby (with its own
funds), for so long as such Advance is outstanding. Such interest with respect
to any Advances shall be payable: (i) first, in accordance with Sections 3.05
and 3.27, out of any Default Charges subsequently collected on or in respect of
the Mortgage Pool or One Stamford Forum Note B, if applicable; and (ii) then,
after such Advance is reimbursed, but only if and to the extent that such
Default Charges are insufficient to cover such Advance Interest, out of general
collections on the Mortgage Loans and REO Properties on deposit in the
Certificate Account or if the Serviced Whole Loan or related REO Property is
involved, on deposit in the Serviced Whole Loan Custodial Account. The Master
Servicer shall reimburse itself, the Special Servicer or the Trustee, as
appropriate, for any Advance made by any such Person as soon as practicable
after funds available for such purpose are deposited into the Certificate
Account or if the Serviced Whole Loan is involved, are deposited into the
Serviced Whole Loan Custodial Account. Notwithstanding anything herein to the
contrary, no interest shall be payable with respect to any P&I Advance of a
payment due on a Serviced Loan during the applicable grace period and interest
shall cease to accrue on any Workout-Delayed Reimbursement Amount to the extent
such amount has been reimbursed from principal collections in accordance with
Section 3.05.
(h) Notwithstanding anything to the contrary set forth herein, none
of the Master Servicer, the Special Servicer or the Trustee shall be required to
make any Servicing Advance that it determines in its reasonable, good faith
judgment would constitute a Nonrecoverable Servicing Advance; provided, however,
that the Special Servicer may, at its option, in consultation with the Directing
Certificateholder, make a determination in accordance with the Servicing
Standard, that any Servicing Advance previously made or proposed to be made is a
Nonrecoverable Servicing Advance and shall deliver to the Master Servicer and
the Trustee notice of such determination. Any such determination shall be
conclusive and binding on the Master Servicer and the Trustee. The determination
by any Person with an obligation hereunder to make Servicing Advances (or a
determination by the Special Servicer with respect to such Person) that it has
made a Nonrecoverable Servicing Advance or that any proposed Servicing Advance,
if made, would constitute a Nonrecoverable Servicing Advance, shall be made by
such Person in its reasonable, good faith judgment and shall be evidenced by an
Officer's Certificate delivered promptly to the Depositor and the Trustee
(unless it is the Person making such determination), and the Trustee shall
provide a copy thereof to the Directing Certificateholder, the One Stamford
Forum Note B Holder (if the Serviced Whole Loan is involved and the Trustee has
knowledge of such Noteholder), setting forth the basis for such determination,
accompanied by a copy of an Appraisal of the related Mortgaged Property or REO
Property performed within the 12 months preceding such determination, and
further accompanied by any other information, including engineers' reports,
environmental surveys or similar reports, that such Person may have obtained and
that support such determination. Notwithstanding the foregoing and the Trustee
(i) shall conclusively rely on and be bound by any determination of
nonrecoverability that may have been made by the Special Servicer and (ii) shall
be entitled to conclusively rely on any determination of nonrecoverability that
may have been made by the Master Servicer with respect to a particular Servicing
Advance, and the Master Servicer and the Special Servicer shall each be entitled
to conclusively rely on any determination of nonrecoverability that may have
been made by the other such party with respect to a particular Servicing
Advance. A copy of any such Officer's Certificate (and accompanying information)
of the Master Servicer shall also be delivered promptly to the Special Servicer,
a copy of any such Officer's Certificate (and accompanying information) of the
Special Servicer shall also be promptly delivered to the Master Servicer, and a
copy of any such Officer's Certificates (and accompanying information) of the
Trustee shall also be promptly delivered to the Master Servicer and the Special
Servicer. The Master Servicer shall consider Unliquidated Advances in respect of
prior Servicing Advances for purposes of nonrecoverability determinations as if
such Unliquidated Advances were unreimbursed Servicing Advances.
(i) Notwithstanding anything to the contrary set forth herein, the
Master Servicer may (and, at the direction of the Special Servicer if a
Specially Serviced Loan or an REO Property is involved, shall) pay directly out
of the Certificate Account or, if the Serviced Whole Loan is involved, the
Serviced Whole Loan Custodial Account, in accordance with Section 3.05, any
servicing expense that, if paid by the Master Servicer or the Special Servicer,
would constitute a Nonrecoverable Servicing Advance; provided that the Master
Servicer (or the Special Servicer, if a Specially Serviced Loan or an REO
Property is involved) has determined in accordance with the Servicing Standard
that making such payment is in the best interests of the Certificateholders, or
if the Serviced Whole Loan is affected, the interests of the Certificateholders
and the One Stamford Forum Note B Holder (as a collective whole taking into
account the subordination of the One Stamford Forum Note B), as evidenced by an
Officer's Certificate delivered promptly to the Depositor and the Trustee, which
shall provide a copy thereof to the Directing Certificateholder and the One
Stamford Forum Note B Holder (if the Serviced Whole Loan is involved and the
Trustee has knowledge of such Noteholder), setting forth the basis for such
determination and accompanied by any information that such Person may have
obtained that supports such determination. A copy of any such Officer's
Certificate (and accompanying information) of the Master Servicer shall also be
delivered promptly to the Special Servicer, and a copy of any such Officer's
Certificate (and accompanying information) of the Special Servicer shall also be
promptly delivered to the Master Servicer.
Section 3.12 Inspections; Collection of Financial Statements.
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(a) The Special Servicer shall perform or cause to be performed a
physical inspection of a Mortgaged Property as soon as practicable (but in any
event not later than 60 days) after the related Serviced Loan becomes a
Specially Serviced Loan (and, in cases where the related Serviced Loan has
become a Specially Serviced Loan, the Special Servicer shall continue to perform
or cause to be performed a physical inspection of the subject Mortgaged Property
at least once per calendar year thereafter for so long as the related Serviced
Loan remains a Specially Serviced Loan or if such Mortgaged Property becomes an
REO Property); provided that the Special Servicer shall be entitled to
reimbursement of the reasonable and direct out-of-pocket expenses incurred by it
in connection with each such inspection as Servicing Advances. Beginning in
2007, the Master Servicer shall at its expense perform or cause to be performed
an inspection of each Mortgaged Property at least once per calendar year (or, in
the case of each Loan with an unpaid principal balance of under $2,000,000, once
every two years), if the Special Servicer has not already done so during that
period pursuant to the preceding sentence. The costs of each such inspection
incurred by the Special Servicer shall be reimbursable first from Default
Charges and then, to the extent such Default Charges are insufficient, out of
general collections. To the extent such costs are to be reimbursed from general
collections, such costs shall constitute an Additional Trust Fund Expense. The
Master Servicer and the Special Servicer shall each prepare a written report of
each such inspection performed by it or on its behalf that sets forth in detail
the condition of the Mortgaged Property and that specifies the occurrence or
existence of: (i) any sale, transfer or abandonment of the Mortgaged Property of
which the Master Servicer or the Special Servicer, as the case may be, is aware,
(ii) any change in the condition or occupancy of the Mortgaged Property that the
Master Servicer or the Special Servicer, as the case may be, in accordance with
the Servicing Standard, is aware of and considers material, or (iii) any waste
committed on the Mortgaged Property that the Master Servicer or the Special
Servicer, as the case may be, in accordance with the Servicing Standard, is
aware of and considers material. Upon request of the Trustee, the Master
Servicer and the Special Servicer shall each deliver to the Trustee a copy (or
image in suitable electronic media) of each such written report prepared by it,
in each case within 30 days following the request (or, if later, within 30 days
following the later of completion of the related inspection if the inspection is
performed by the Master Servicer or the Special Servicer, as the case may be, or
receipt of the related inspection report if the inspection is performed by a
third party). Upon request, the Trustee shall request from the Master Servicer
or the Special Servicer, as the case may be, and, to the extent such items have
been delivered to the Trustee by the Master Servicer or the Special Servicer, as
the case may be, deliver, upon request, to each of the Depositor, the Mortgage
Loan Seller, the Directing Certificateholder, the One Stamford Forum Note B
Holder (if the Serviced Whole Loan is involved and the Trustee has knowledge of
such Noteholder), any Certificateholder or, if the Trustee has in accordance
with Section 5.06(b) confirmed the Ownership Interest in Certificates held
thereby, any Certificate Owner, a copy (or image in suitable electronic media)
of each such written report prepared by the Master Servicer or the Special
Servicer.
(b) Commencing with respect to the calendar quarter ended December
2006, the Special Servicer, in the case of any Specially Serviced Loan, and the
Master Servicer, in the case of each Performing Serviced Loan, shall make
reasonable efforts to collect promptly (and, in any event, shall attempt to
collect within 45 days following the end of the subject quarter or 120 days
following the end of the subject year) from each related Mortgagor quarterly and
annual operating statements, budgets and rent rolls of the related Mortgaged
Property, and quarterly and annual financial statements of such Mortgagor, to
the extent required pursuant to the terms of the related Mortgage. In addition,
the Special Servicer shall cause quarterly and annual operating statements,
budgets and rent rolls to be regularly prepared in respect of each REO Property
and shall collect all such items promptly following their preparation. The
Special Servicer shall deliver copies (or images in suitable electronic media)
of all of the foregoing items so collected or obtained by it to the Master
Servicer within 30 days of its receipt thereof.
Within 60 days after receipt by the Master Servicer from the related
Mortgagors or otherwise, as to Performing Serviced Loans, and within 45 days
after receipt by the Special Servicer or otherwise, as to Specially Serviced
Loans and REO Properties, of any annual operating statements or rent rolls with
respect to any Mortgaged Property or REO Property, the Master Servicer (or the
Special Servicer, with respect to any Specially Serviced Loan or REO Property)
shall, based upon such operating statements or rent rolls, prepare (or, if
previously prepared, update) the related CMSA Operating Statement Analysis
Report. The Master Servicer also shall deliver to the Directing
Certificateholder (in hard copy or electronic format, as requested) copies of
all such rent rolls and operating statements. The Special Servicer shall remit a
copy of each CMSA Operating Statement Analysis Report prepared or updated by it
(within ten days following the initial preparation and each update thereof),
together with, if so requested, the underlying operating statements and rent
rolls, to the Master Servicer in a format reasonably acceptable to the Master
Servicer and the Trustee. All CMSA Operating Statement Analysis Reports relating
to Performing Serviced Loans shall be maintained by the Master Servicer, and all
CMSA Operating Statement Analysis Reports relating to any Specially Serviced
Loan and REO Property shall be maintained by the Special Servicer. The Trustee
shall, upon request, request from the Master Servicer (if necessary) and, to the
extent such items have been delivered to the Trustee by the Master Servicer,
deliver to the Directing Certificateholder, the One Stamford Forum Note B Holder
(if the Serviced Whole Loan is involved and the Trustee has knowledge of such
Noteholder), any Certificateholder or, if the Trustee has in accordance with
Section 5.06 confirmed the Ownership Interest in the Certificates held thereby,
any Certificate Owner, a copy of such CMSA Operating Statement Analysis (or
update thereof) and, if requested, the related operating statement or rent
rolls.
Within 60 days (or, in the case of items received from the Special
Servicer with respect to Specially Serviced Loans and REO Properties, 30 days)
after receipt by the Master Servicer of any quarterly or annual operating
statements with respect to any Mortgaged Property or REO Property, the Master
Servicer (or the Special Servicer, with respect to any Specially Serviced Loan
or REO Property) shall prepare or update and forward to the Trustee (upon
request), the Master Servicer (with respect to CMSA NOI Adjustment Worksheets
prepared by the Special Servicer), the Special Servicer (with respect to CMSA
NOI Adjustment Worksheets prepared by the Master Servicer), the Directing
Certificateholder (if the Directing Certificateholder and the Special Servicer
are not the same entity), the One Stamford Forum Note B Holder upon its request
(if the Serviced Whole Loan is involved), a CMSA NOI Adjustment Worksheet for
such Mortgaged Property or REO Property, together with, if so requested, the
related operating statements (in an electronic format reasonably acceptable to
the Trustee and the Special Servicer).
If, with respect to any Serviced Loan (other than a Specially
Serviced Loan), the Special Servicer has any questions for the related Mortgagor
based upon the information received by the Special Servicer pursuant to Section
3.12(a) or 3.12(b), the Master Servicer shall, in this regard and without
otherwise changing or modifying its duties hereunder, reasonably cooperate with
the Special Servicer in assisting the Special Servicer to contact and solicit
information from such Mortgagor.
(c) Not later than 2:00 p.m. (New York City time) on the first
Business Day following each Determination Date, the Special Servicer shall
prepare and deliver or cause to be delivered to the Master Servicer, the
Directing Certificateholder, the One Stamford Forum Note B Holder (if the
Serviced Whole Loan is involved), the following reports (or data files relating
to reports of the Master Servicer) with respect to the Specially Serviced Loans
and any REO Properties for which it is responsible, providing the required
information as of such Determination Date: (i) a CMSA Property File; (ii) a CMSA
Special Servicer Loan File (which, in each case, if applicable, will identify
each Serviced Loan by loan number and property name); and (iii) the CMSA REO
Status Report. In addition, the Special Servicer shall from time to time provide
the Master Servicer with such information in the Special Servicer's possession
regarding the Specially Serviced Loans and REO Properties as may be requested by
the Master Servicer and is reasonably necessary for the Master Servicer to
prepare each report and any supplemental information required to be provided by
the Master Servicer to the Trustee.
(d) Not later than 12:00 noon (New York City time) on the third
Business Day following each Determination Date (or with respect to the CMSA Loan
Periodic Update File, not later than 2:00 p.m. (New York City time) on the
second Business Day following each Determination Date), the Master Servicer
shall prepare (if and to the extent necessary) and deliver or cause to be
delivered to the Trustee, the Special Servicer, the Directing Certificateholder
(if the Directing Certificateholder is not the same entity as the Special
Servicer) and the One Stamford Forum Note B Holder (if the Serviced Whole Loan
is involved), in a computer-readable medium downloadable by the Trustee, the
Special Servicer, the Directing Certificateholder, the One Stamford Forum Note B
Holder (if the Serviced Whole Loan is involved) (or, in the case of the Trustee,
at the Trustee's written request, in a form reasonably acceptable to the
recipient, including on a loan-by-loan basis), each of the files and reports
listed in the definition of "CMSA Investor Reporting Package" (other than the
CMSA Bond Level File and the CMSA Collateral Summary File, which are prepared by
the Trustee), providing the most recent information with respect to the Mortgage
Pool as of the related Determination Date (and which, in each case, if
applicable, will identify each subject Loan by loan number and property name).
The Master Servicer may, but is not required to, make any of the
reports or files comprising the CMSA Investor Reporting Package (other than the
CMSA Bond Level File and the CMSA Collateral Summary File, which are prepared by
the Trustee) available each month on the Master Servicer's website; provided,
that the Master Servicer shall e-mail such reports or files to the Directing
Certificateholder and the One Stamford Forum Note B Holder (if the Serviced
Whole Loan is involved), until the Master Servicer's website is established. In
connection with providing access to the Master Servicer's website, the Master
Servicer may require registration and the acceptance of a disclaimer and
otherwise (subject to the preceding sentence) adopt reasonable rules and
procedures, which may include, to the extent the Master Servicer deems necessary
or appropriate, conditioning access on execution of an agreement governing the
availability, use and disclosure of such information, and which may provide
indemnification to the Master Servicer for any liability or damage that may
arise therefrom.
(e) The Special Servicer shall deliver to the Master Servicer the
reports set forth in Section 3.12(b) and Section 3.12(c), and the Master
Servicer shall deliver to the Trustee and the Special Servicer the reports set
forth in Section 3.12(d), in an electronic format reasonably acceptable to the
Special Servicer, the Master Servicer and the Trustee. The Master Servicer may,
absent manifest error, conclusively rely on the reports to be provided by the
Special Servicer pursuant to Section 3.12(b) and Section 3.12(c). The Trustee
may, absent manifest error, conclusively rely on the reports to be provided by
the Master Servicer pursuant to Section 3.12(d). In the case of information or
reports to be furnished by the Master Servicer to the Trustee pursuant to
Section 3.12(d), to the extent that such information or reports are, in turn,
based on information or reports to be provided by the Special Servicer pursuant
to Section 3.12(b) or Section 3.12(c) and to the extent that such reports are to
be prepared and delivered by the Special Servicer pursuant to Section 3.12(b) or
Section 3.12(c), the Master Servicer shall have no obligation to provide such
information or reports to the Trustee until it has received the requisite
information or reports from the Special Servicer, and the Master Servicer shall
not be in default hereunder due to a delay in providing the reports required by
Section 3.12(d) caused by the Special Servicer's failure to timely provide any
information or report required under Section 3.12(b) or Section 3.12(c).
(f) Notwithstanding the foregoing, however, the failure of the
Master Servicer or the Special Servicer to disclose any information otherwise
required to be disclosed by this Section 3.12 shall not constitute a breach of
this Section 3.12 to the extent the Master Servicer or the Special Servicer so
fails because such disclosure, in the reasonable belief of the Master Servicer
or the Special Servicer, as the case may be, would violate any applicable law or
any provision of a loan document prohibiting disclosure of information with
respect to the Loans or Mortgaged Properties or would constitute a waiver of the
attorney-client privilege on behalf of the Trust. The Master Servicer and the
Special Servicer may disclose any such information or any additional information
to any Person so long as such disclosure is consistent with applicable law, the
related loan documents and the Servicing Standard. The Master Servicer or the
Special Servicer may affix to any information provided by it any disclaimer it
deems appropriate in its reasonable discretion (without suggesting liability on
the part of any other party hereto).
(g) The Depositor shall provide to the Master Servicer and the
Trustee the initial data (as of the respective Due Dates for the Loans in
September 2006 or the most recent earlier date for which such data is available)
contemplated by the CMSA Loan Setup File, the CMSA Loan Periodic Update File,
the CMSA Operating Statement Analysis Report and the CMSA Property File. In
addition, the Depositor shall cause the Mortgage Loan Seller to prepare (or
cause to be prepared on its behalf) a CMSA Loan Set-Up File.
(h) If the Master Servicer or the Special Servicer is required to
deliver any statement, report or information under any provision of this
Agreement, the Master Servicer or the Special Servicer, as the case may be, may
satisfy such obligation by (x) physically delivering a paper copy of such
statement, report or information, (y) delivering such statement, report or
information in a commonly used electronic format or (z) making such statement,
report or information available on the Master Servicer's internet website or the
Trustee's Website, unless this Agreement expressly specifies a particular method
of delivery. Notwithstanding the foregoing, the Trustee may request delivery in
paper format of any statement, report or information required to be delivered to
the Trustee and clause (z) shall not apply to the delivery of any information
required to be delivered to the Trustee unless the Trustee consents to such
delivery.
Section 3.13 [RESERVED].
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Section 3.14 [RESERVED].
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Section 3.15 Access to Certain Information.
------------------------------
(a) Each of the Master Servicer and the Special Servicer shall
afford to the Trustee, the Depositor, each Rating Agency, the Directing
Certificateholder and the One Stamford Forum Note B Holder (if the Serviced
Whole Loan is involved), and to the OTS, the FDIC and any other banking or
insurance regulatory authority that may exercise authority over any
Certificateholder or Certificate Owner, access to any records regarding the
Loans and the servicing thereof within its control, except to the extent it is
prohibited from doing so by applicable law, the terms of the loan documents or
contract entered into prior to the Closing Date or to the extent such
information is subject to a privilege under applicable law to be asserted on
behalf of the Certificateholders. Such access shall be afforded without charge
but only upon reasonable prior written request and during normal business hours
at the offices of the Master Servicer or the Special Servicer, as the case may
be, designated by it; provided, however, that Certificateholders and Certificate
Owners shall be required to pay their own photocopying costs. The Master
Servicer and the Special Servicer shall each be entitled to affix a reasonable
disclaimer to any information provided by it for which it is not the original
source (without suggesting liability on the part of any other party hereto). In
connection with providing access to such records to the Directing
Certificateholder and the One Stamford Forum Note B Holder (if the Serviced
Whole Loan is involved), the Master Servicer and the Special Servicer may each
require registration (to the extent access is provided via the Master Servicer's
internet website) and the acceptance of a reasonable disclaimer and otherwise
adopt reasonable rules and procedures, which may include, to the extent the
Master Servicer or the Special Servicer, as applicable, deems necessary or
reasonably appropriate, conditioning access on the execution and delivery of an
agreement reasonably governing the availability, use and disclosure of such
information. The failure of the Master Servicer or the Special Servicer to
provide access as provided in this Section 3.15 as a result of a confidentiality
obligation shall not constitute a breach of this Section 3.15. The Master
Servicer and the Special Servicer may each deny any of the foregoing persons
access to confidential information or any intellectual property that the Master
Servicer or the Special Servicer is restricted by license or contract from
disclosing. In connection with providing access to information pursuant to this
Section 3.15 to parties other than the Trustee, the Master Servicer and the
Special Servicer may each (i) affix a reasonable disclaimer to any information
provided by it for which it is not the original source (without suggesting
liability on the part of any other party hereto); (ii) affix to any information
provided by it a reasonable statement regarding securities law restrictions on
such information and/or condition access to information on the execution of a
reasonable confidentiality agreement; (iii) withhold access to confidential
information or any intellectual property; and (iv) withhold access to items of
information contained in the Servicing File for any Mortgage Loan if the
disclosure of such items is prohibited by applicable law or the provisions of
any related loan documents or would constitute a waiver of the attorney client
privilege. Notwithstanding any provision of this Agreement to the contrary, the
failure of the Master Servicer or the Special Servicer to disclose any
information otherwise required to be disclosed by it pursuant to this Agreement
shall not constitute a breach of this Agreement to the extent that the Master
Servicer or the Special Servicer, as the case may be, determines, in its
reasonable good faith judgment consistent with the applicable Servicing
Standard, that such disclosure would violate applicable law or any provision of
a loan documents or One Stamford Forum Note B document prohibiting disclosure of
information with respect to the Mortgage Loans or One Stamford Forum Note B or
the Mortgaged Properties, constitute a waiver of the attorney client privilege
on behalf of the Trust or the Trust Fund or otherwise materially harm the Trust
or the Trust Fund. Neither the Master Servicer nor the Special Servicer shall be
liable for providing or disseminating information in accordance with the terms
of this Agreement.
(b) Once a month, each of the Master Servicer and the Special
Servicer shall, without charge, make a knowledgeable Servicing Officer available
to answer questions from the Directing Certificateholder during regular business
hours at such time and for such duration as the Master Servicer or the Special
Servicer, as applicable, and the Directing Certificateholder shall reasonably
agree, regarding the performance and servicing of the Mortgage Loans and/of REO
Properties for which the Master Servicer or the Special Servicer, as the case
may be, is responsible. As a condition to such disclosure, the Directing
Certificateholder shall execute a confidentiality agreement substantially in the
form attached hereto as Exhibit M.
Section 3.16 Title to REO Property; REO Account.
-----------------------------------
(a) If title to any REO Property is acquired, the deed or
certificate of sale shall be issued to the Trustee or its nominee, on behalf of
the Certificateholders or, subject to Section 3.09(b), to a single member
limited liability company of which the Trust is the sole member, which limited
liability company is formed or caused to be formed by the Special Servicer at
the expense of the Trust for the purpose of taking title to one or more REO
Properties pursuant to this Agreement. The limited liability company shall be
(i) disregarded as an entity separate from the Trust pursuant to Treasury
Regulations Section 301.7701-3(b), and (ii) a manager-managed limited liability
company, with the Special Servicer to serve as the initial manager to manage the
property of the limited liability company, including any applicable REO
Property, in accordance with the terms of this Agreement as if such property was
held directly in the name of the Trust or Trustee under this Agreement. The
Special Servicer, on behalf of the Trust (and, in the case of the Serviced Whole
Loan, on behalf of the One Stamford Forum Note B Holder), shall sell any REO
Property by the end of the third calendar year following the year in which the
Trust and, if applicable, the One Stamford Forum Note B Holder acquire ownership
of such REO Property for purposes of Section 860G(a)(8) of the Code, unless the
Special Servicer either (i) applies, more than 60 days prior to the expiration
of such liquidation period, and is granted an extension of time (an "REO
Extension") by the IRS to sell such REO Property or (ii) obtains for the Trustee
an Opinion of Counsel, addressed to the Trustee, to the effect that the holding
by the Trust of such REO Property subsequent to the end of the third calendar
year following the year in which such acquisition occurred will not result in an
Adverse REMIC Event with respect to either of REMIC I or REMIC II. Regardless of
whether the Special Servicer applies for or is granted the REO Extension
contemplated by clause (i) of the immediately preceding sentence or obtains the
Opinion of Counsel referred to in clause (ii) of such sentence, the Special
Servicer shall act in accordance with the Servicing Standard to liquidate such
REO Property on a timely basis. If the Special Servicer is granted such REO
Extension or obtains such Opinion of Counsel, the Special Servicer shall (i)
promptly forward a copy of such REO Extension or Opinion of Counsel to the
Trustee, and (ii) sell such REO Property within such extended period as is
permitted by such REO Extension or contemplated by such Opinion of Counsel, as
the case may be. Any expense incurred by the Special Servicer in connection with
its applying for and being granted the REO Extension contemplated by clause (i)
of the third preceding sentence or its obtaining the Opinion of Counsel
contemplated by clause (ii) of the third preceding sentence, and for the
creation of and the operating of a limited liability company, shall be covered
by, and be reimbursable as, a Servicing Advance.
(b) The Special Servicer shall segregate and hold all funds
collected and received in connection with any REO Property separate and apart
from its own funds and general assets. If an REO Acquisition shall occur, except
as provided in the immediately succeeding sentence, the Special Servicer shall
establish and maintain one or more Pool REO Accounts, to be held on behalf of
the Trustee in trust for the benefit of the Certificateholders, for the
retention of revenues and other proceeds derived from each REO Property. If such
REO Acquisition occurs with respect to any Mortgaged Property securing a Whole
Loan, the Special Servicer shall establish an REO Account solely with respect to
such property (a "Serviced Whole Loan REO Account"), which may be a sub-account
of the Pool REO Account, to be held for the benefit of the Certificateholders
and the One Stamford Forum Note B Holder. Each REO Account shall be an Eligible
Account and may consist of one account for all the REO Properties. The Special
Servicer shall deposit, or cause to be deposited, into the related REO Account,
within two Business Days of receipt, all REO Revenues, Liquidation Proceeds (net
of all Liquidation Expenses paid therefrom) and Insurance Proceeds received in
respect of an REO Property. The Special Servicer is authorized to pay out of
related Liquidation Proceeds any Liquidation Expenses incurred in respect of an
REO Property and outstanding at the time such proceeds are received. Funds in an
REO Account may be invested only in Permitted Investments in accordance with
Section 3.06. The Special Servicer shall be entitled to make withdrawals from an
REO Account to pay itself, as Additional Special Servicing Compensation in
accordance with Section 3.11(d), interest and investment income earned in
respect of amounts held in such REO Account as provided in Section 3.06(b) (but
only to the extent of the Net Investment Earnings with respect to the REO
Account for any Collection Period). The Special Servicer shall give notice to
the other parties hereto and if the Serviced Whole Loan is involved, the One
Stamford Forum Note B Holder, of the location of an REO Account when first
established and of the new location of an REO Account prior to any change
thereof.
(c) The Special Servicer shall withdraw from the REO Account funds
necessary for the proper operation, management, maintenance and disposition of
any REO Property, but only to the extent of amounts on deposit in the applicable
REO Account relating to such REO Property. By 2:00 p.m., New York City time, on
the Business Day following the end of each Collection Period, the Special
Servicer shall withdraw from the related REO Account and deposit into the
Certificate Account or the applicable Serviced Whole Loan Custodial Account, as
applicable, or deliver to the Master Servicer (which shall deposit such amounts
into the Certificate Account or the applicable Serviced Whole Loan Custodial
Account, as applicable), the aggregate of all amounts received in respect of
each such REO Property during such Collection Period, net of any withdrawals
made out of such amounts pursuant to the preceding sentence; provided that the
Special Servicer may retain in the applicable REO Account such portion of such
proceeds and collections as may be necessary to maintain a reserve of sufficient
funds for the proper operation, management, leasing, maintenance and disposition
of any such REO Property (including the creation of a reasonable reserve for
repairs, replacements, necessary capital improvements and other related
expenses), such reserve not to exceed an amount sufficient to cover such items
reasonably expected to be incurred during the following 12-month period. For
purposes of the foregoing, the Pool REO Account and the Serviced Whole Loan REO
Account correspond to the Certificate Account and the Serviced Whole Loan
Custodial Account, respectively.
(d) The Special Servicer shall keep and maintain separate records,
on a property-by-property basis, for the purpose of accounting for all deposits
to, and withdrawals from, an REO Account pursuant to Section 3.16(b) or (c).
Section 3.17 Management of REO Property.
---------------------------
(a) If title to any REO Property is acquired, the Special Servicer
shall manage, conserve, protect, operate and lease such REO Property for the
benefit of the Certificateholders (and, in the case of the Serviced Whole Loan,
for the benefit of the One Stamford Forum Note B Holder as a collective whole)
solely for the purpose of its timely disposition and sale in a manner that does
not cause such REO Property to fail to qualify as "foreclosure property" within
the meaning of Section 860G(a)(8) of the Code or result in the receipt by the
Trust Fund of any "income from non permitted assets" within the meaning of
Section 860F(a)(2)(B) of the Code. Subject to the foregoing, however, the
Special Servicer shall have full power and authority to do any and all things in
connection therewith as are in the best interests of and for the benefit of the
Certificateholders (and, in the case of the Serviced Whole Loan, for the benefit
of the One Stamford Forum Note B Holder (as a collective whole taking into
account the subordination of the One Stamford Forum Note B) (as determined by
the Special Servicer in its good faith and reasonable judgment). Subject to this
Section 3.17, the Special Servicer may earn "net income from foreclosure
property" within the meaning of Section 860G(c) of the Code if it determines
that earning such income is in the best interests of Certificateholders, or if
the Serviced Whole Loan is affected, the interests of the Certificateholders and
the One Stamford Forum Note B Holder (as a collective whole taking into account
the subordination of the One Stamford Forum Note B), on a net after-tax basis as
compared with net leasing such REO Property or operating such REO Property on a
different basis. In connection therewith, the Special Servicer shall deposit or
cause to be deposited on a daily basis (and in no event later than the second
Business Day following receipt of such funds), in the applicable REO Account all
revenues received by it with respect to each such REO Property and the related
REO Serviced Loan, and shall withdraw from the applicable REO Account, to the
extent of amounts on deposit therein with respect to such REO Property, funds
necessary for the proper operation, management, leasing, maintenance and
disposition of such REO Property, including, without limitation:
(i) all insurance premiums due and payable in respect of such REO
Property;
(ii) all real estate taxes and assessments in respect of such REO
Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property, if
applicable; and
(iv) all costs and expenses necessary to maintain, lease and dispose
of such REO Property.
To the extent that amounts on deposit in the REO Account in respect
of any such REO Property are insufficient for the purposes set forth in clauses
(i) through (iv) above with respect to such REO Property, the Special Servicer
shall, subject to Section 3.19(d), direct the Master Servicer to make (and the
Master Servicer shall so make) Servicing Advances in such amounts as are
necessary for such purposes unless (as evidenced in the manner contemplated by
Section 3.11(g)) the Master Servicer determines, in its reasonable, good faith
judgment, that such payment would be a Nonrecoverable Servicing Advance.
(b) Without limiting the generality of the foregoing, the Special
Servicer shall not:
(i) permit the Trust Fund to enter into, renew or extend any New
Lease with respect to any REO Property, if the New Lease by its terms will
give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease
other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on any such REO Property,
other than the completion of a building or other improvement thereon, and
then only if more than 10% of the construction of such building or other
improvement was completed before default on the related Serviced Loan
became imminent, all within the meaning of Section 856(e)(4)(B) of the
Code; or
(iv) Directly Operate, or allow any other Person, other than an
Independent Contractor, to Directly Operate, any such REO Property on any
date more than 90 days after its acquisition date;
unless, in any such case, the Special Servicer has obtained an Opinion of
Counsel (the cost of which shall be paid by the Master Servicer as a Servicing
Advance) to the effect that such action will not cause such REO Property to fail
to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code at any time that it is held by the Trust Fund, in which case the
Special Servicer may take such actions as are specified in such Opinion of
Counsel.
(c) The Special Servicer shall contract with any Independent
Contractor for the operation and management of any REO Property within 90 days
of the acquisition date thereof, provided that:
(i) the terms and conditions of any such contract may not be
inconsistent herewith and shall reflect an agreement reached at arm's
length;
(ii) the fees of such Independent Contractor (which shall be an
expense of the Trust Fund, unless the Serviced Whole Loan is involved, in
which case such fees shall be netted out of collections on the REO
Property prior to being remitted to the Special Servicer) shall be
reasonable and customary in light of the nature and locality of the REO
Property;
(iii) any such contract shall require, or shall be administered to
require, that the Independent Contractor (A) pay all costs and expenses
incurred in connection with the operation and management of such REO
Property, including, without limitation, those listed in Section 3.17(a),
and (B) remit all related revenues collected (net of its fees and such
costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(c) relating to any
such contract or to actions taken through any such Independent Contractor
shall be deemed to relieve the Special Servicer of any of its duties and
obligations hereunder with respect to the operation and management of any
such REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to
the same extent as if it alone were performing all duties and obligations
in connection with the operation and management of such REO Property.
The Special Servicer shall be entitled to enter into any agreement
with any Independent Contractor performing services for it related to its duties
and obligations hereunder for indemnification of the Special Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification. To the extent the costs of any contract with an
Independent Contractor for the operation and maintenance of any REO Property are
greater than the revenues from such REO Property, such excess costs shall be
covered by and reimbursable as a Servicing Advance.
(d) When and as necessary, the Special Servicer shall send to the
Trustee and the Master Servicer a statement prepared by the Special Servicer
setting forth the amount of net income or net loss, as determined for federal
income tax purposes, resulting from the operation and management of a trade or
business on, the furnishing or rendering of a non customary service to the
tenants of, or the receipt of any other amount not constituting Rents from Real
Property in respect of, any REO Property in accordance with Sections 3.17(a) and
3.17(b).
Section 3.18 Resolution of Defaulted Serviced Loans and REO
----------------------------------------------
Properties.
-----------
(a) The Master Servicer, the Special Servicer or the Trustee may
sell or purchase, or permit the sale or purchase of, a Loan or a related REO
Property only on the terms and subject to the conditions set forth in this
Section 3.18 or as otherwise expressly provided in or contemplated by Section
2.03(a), Section 9.01, an Intercreditor Agreement, or, in the case of a Mortgage
Loan with a related Mezzanine Loan, pursuant to the terms of the related
Mezzanine Intercreditor Agreement.
(b) After the Master Servicer has pursuant to Section 3.21(a)
notified the Special Servicer of a Servicing Transfer Event and in connection
therewith has provided the Special Servicer with the information required under
Section 3.21(a) with respect to any Defaulted Serviced Loan, the Special
Servicer shall determine the fair value of such Defaulted Serviced Loan in
accordance with the Servicing Standard as hereinafter provided; provided,
however, that such determination shall be made without taking into account any
effect the restrictions on the sale of such Mortgage Loan contained herein may
have on the value of such Defaulted Serviced Loan; provided, further, that the
Special Servicer shall use reasonable efforts promptly to obtain an Appraisal
with respect to the related Mortgaged Property unless it has an Appraisal that
is less than 12 months old and has no actual knowledge of, or notice of, any
event that in the Special Servicer's judgment would materially affect the
validity of such Appraisal. The Special Servicer shall make its fair value
determination as soon as reasonably practicable (but in any event within 30
days) after its receipt of such new Appraisal, if applicable. The Special
Servicer will, from time to time, but not less often than every 90 days, adjust
its fair value determination based upon changed circumstances, new information
and other relevant factors, if any, in each instance in accordance with the
Servicing Standard. The Special Servicer shall notify the Trustee, the Master
Servicer and the Majority Certificateholder of the Controlling Class, promptly
upon its fair value determination and any adjustment thereto. The Special
Servicer shall also deliver to the Master Servicer and the Majority
Certificateholder of the Controlling Class the most recent Appraisal of the
related Mortgaged Property then in the Special Servicer's possession, together
with such other third-party reports and other information then in the Special
Servicer's possession that the Special Servicer reasonably believes to be
relevant to the fair value determination with respect to such Mortgage Loan
(such materials are, collectively, the "Determination Information").
Notwithstanding the foregoing, the Special Servicer shall not be required to
deliver the Determination Information to the Master Servicer, and shall instead
deliver the Determination Information to the Trustee, if the Master Servicer
will not be determining whether the Option Price represents fair value for the
Defaulted Serviced Loan, pursuant to Section 3.18(e). The reasonable
out-of-pocket costs and expenses incurred by the Special Servicer in making its
fair value determination shall be paid and reimbursed as a Servicing Advance.
In determining the fair value of any Defaulted Serviced Loan, the
Special Servicer shall take into account, among other factors, the period and
amount of the delinquency on such Defaulted Serviced Loan, the occupancy level
and physical condition of the related Mortgaged Property, the state of the local
economy in the area where the Mortgaged Property is located, the time and
expense associated with a purchaser's foreclosing on the related Mortgaged
Property and the expected recoveries from pursuing a work-out or foreclosure
strategy instead of selling the Defaulted Serviced Loan to the Option Holder. In
addition, the Special Servicer shall refer to the Determination Information and
all other relevant information obtained by it or otherwise contained in the
Mortgage File and provided to the Special Servicer; provided that the Special
Servicer shall take account of any change in circumstances regarding the related
Mortgaged Property known to the Special Servicer that has occurred subsequent
to, and that would, in the Special Servicer's reasonable judgment, materially
affect the value of the related Mortgaged Property reflected in, the most recent
related Appraisal. Furthermore, the Special Servicer shall consider all
available objective third-party information obtained from generally available
sources, as well as information obtained from Independent vendors providing real
estate services to the Special Servicer, concerning the market for distressed
real estate loans and the real estate market for the subject property type in
the area where the related Mortgaged Property is located. The reasonable cost of
all third party consultants and related reports, including but not limited to
appraisals, inspection reports and broker opinions of value, reasonably incurred
by the Special Servicer pursuant to this Section 3.18(b) shall constitute, and
be reimbursable as, Servicing Advances. The other parties to this Agreement
shall cooperate with all reasonable requests for information.
(c) At the time a Mortgage Loan becomes a Defaulted Serviced Loan,
the Special Servicer and the Majority Certificateholder of the Controlling Class
(each, together with their assignees, an "Option Holder") will have an
assignable option (the "Purchase Option") to purchase such Defaulted Serviced
Loan, subject to the rights of the One Stamford Forum Controlling Holder, if the
Mortgage Loan included in the Serviced Whole Loan is involved, and subject to
Section 3.18(l)) from the Trust Fund at a price (the "Option Price") equal to
(A) if the Special Servicer has not yet determined the fair value of such
Defaulted Serviced Loan, the sum of (1) the Stated Principal Balance thereof,
together with all accrued and unpaid interest thereon at the Mortgage Rate, (2)
any related Prepayment Premium then payable by the Mortgagor, to the extent the
Special Servicer or the Special Servicer's assignee is identified as the Person
that will acquire the related Mortgage Loan, (3) all related Advances for which
the Trust Fund, the Master Servicer, the Special Servicer or the Trustee has not
been reimbursed, together with all accrued and unpaid interest thereon at the
Advance Rate, and (4) all accrued Master Servicing Fees, Special Servicing Fees,
Trustee Fees, Liquidation Fees, Workout Fees and Additional Trust Fund Expenses
allocable to such Defaulted Serviced Loan whether recovered or unrecovered from
the related Mortgagor or (B) if the Special Servicer has determined the fair
value of such Defaulted Serviced Loan pursuant to Section 3.18(b), an amount at
least equal to such fair value with respect to any Purchase Option held by the
Majority Certificateholder of the Controlling Class or the Special Servicer
only. Notwithstanding the foregoing, for a period of 90 days after it receives
notice of the Special Servicer's fair value determination and the related
expiration (if any) of the applicable purchase option held by the related Whole
Loan Purchase Option Holder (the "Option Period"), only the Purchase Option held
by the Majority Certificateholder of the Controlling Class may be exercised.
Notwithstanding the foregoing and for the avoidance of doubt, none of the
Majority Certificateholder of the Controlling Class, the related Whole Loan
Purchase Option Holder or the related Mezzanine Loan Holder (with respect to a
Mezzanine Loan), shall be required to pay a Liquidation Fee with respect to any
applicable purchase right under this Agreement or in the applicable
Intercreditor Agreement or with respect to a purchase of a related Defaulted
Serviced Loan at its fair value as determined in this Section 3.18 if such
purchase occurs or purchase right is exercised not later than 90 days from the
date that the Special Servicer has initially determined the fair value for the
related Defaulted Serviced Loan.
Any Option Holder may sell, transfer, assign or otherwise convey its
Purchase Option with respect to any Defaulted Serviced Loan to any party (other
than a Person whose acquisition of the Defaulted Serviced Loan would violate the
terms of any related intercreditor or similar agreement) at any time after the
related Mortgage Loan becomes a Defaulted Serviced Loan. The transferor of any
Purchase Option shall notify the Trustee and the Master Servicer of such
transfer and such notice shall include the transferee's name, address, telephone
number, facsimile number and appropriate contact person(s) and shall be
acknowledged in writing by the transferee.
Notwithstanding the foregoing, the Majority Certificateholder of the
Controlling Class shall have the right to exercise its Purchase Option prior to
any exercise of the Purchase Option by the Special Servicer; provided, however,
if the Purchase Option is not exercised by the Majority Certificateholder of the
Controlling Class or any assignee thereof within 60 days of a Mortgage Loan
becoming a Defaulted Serviced Loan, then the Special Servicer shall have the
right to exercise its Purchase Option prior to any exercise by the Majority
Certificateholder of the Controlling Class and the Special Servicer or its
assignee may exercise such Purchase Option at any time during the 30-day period
immediately following the expiration of such 60-day period Following the
expiration of each such 30-day period, the Majority Certificateholder of the
Controlling Class shall again have the exclusive right to exercise the Purchase
Option.
Each Option Holder's Purchase Option with respect to any Defaulted
Serviced Loan, if not exercised, will automatically terminate (A) once the
related Defaulted Serviced Loan is no longer a Defaulted Serviced Loan;
provided, however, that if such Mortgage Loan subsequently becomes a Defaulted
Serviced Loan, the related Purchase Option shall again be exercisable, (B) upon
the acquisition, by or on behalf of the Trust Fund, of title to the related
Mortgaged Property through foreclosure or deed-in-lieu of foreclosure, (C) upon
the modification or pay-off, in full or at a discount, of such Defaulted
Serviced Loan in connection with a workout, or (D) subject to the Master
Servicer's determination set forth in Section 3.18(e), upon another Option
Holder's exercise of its Purchase Option with respect to the related Mortgage
Loan becoming effective pursuant to Section 3.18(d).
(d) Upon receipt of notice from the Special Servicer indicating that
a Mortgage Loan has become a Defaulted Serviced Loan, and after the expiration
of the Option Period, each Option Holder (whether the original grantee of such
option or any subsequent transferee) may exercise its Purchase Option by
providing the Master Servicer and the Trustee written notice thereof (the
"Purchase Option Notice"), in the form of Exhibit I, which notice shall identify
the Person that, on its own or through an Affiliate, will acquire the related
Mortgage Loan upon closing and shall specify a cash exercise price at least
equal to the Option Price. Immediately upon receipt of such Purchase Option
Notice, the Master Servicer shall notify the remaining Option Holders that a
Purchase Option has been exercised. Within ten days thereafter, each remaining
Option Holder may submit to the Master Servicer and the Trustee a Purchase
Option Notice for the related Defaulted Serviced Loan. Upon the expiration of
such ten-day period, or such sooner time as all remaining Option Holders have
submitted Purchase Option Notices, the Master Servicer shall notify the Option
Holder whose Purchase Option Notice included the highest exercise price that the
exercise of its Purchase Option is effective. The Master Servicer shall also
notify the Trustee of such effective exercise. In the event that more than one
Option Holder exercises its Purchase Option at the same price, the Purchase
Option Notice first received by the Master Servicer shall be effective. The
exercise of any Purchase Option pursuant to this Section 3.18(d) shall be
irrevocable.
(e) If the Special Servicer or any Controlling Class Option Holder,
or any of their respective Affiliates, is identified in the Purchase Option
Notice as the Person expected to acquire the related Mortgage Loan, and the
Option Price is based upon the Special Servicer's fair value determination, the
Master Servicer shall determine whether the Option Price represents fair value
for the Defaulted Serviced Loan, in the manner set forth in Section 3.18(b) and
as soon as reasonably practicable but in any event within 30 days (except as
such period may be extended as set forth in this paragraph) of its receipt of
the Purchase Option Notice and Determination Information from the Special
Servicer. In determining whether the Option Price represents the fair value of
such Defaulted Serviced Loan, the Master Servicer may obtain an opinion as to
the fair value of such Defaulted Serviced Loans, taking into account the factors
set forth in Section 3.18(b), from a Qualified Appraiser or other Independent
expert of recognized standing having experience in evaluating the value of
defaulted mortgage loans, which opinion shall be based on a review, analysis and
evaluation of the Determination Information, and to the extent such Qualified
Appraiser or third party deems any such Determination Information to be
defective, incorrect, insufficient or unreliable, such Person may base its
opinion on such other information it deems reasonable or appropriate, and,
absent manifest error, the Master Servicer may conclusively rely on the opinion
of any such Person that was chosen by the Master Servicer with reasonable care.
Notwithstanding the 30-day time period referenced above in this paragraph, the
Master Servicer will have an additional 15 days to make a fair value
determination if the Person referenced in the immediately preceding sentence has
determined that the Determination Information is defective, incorrect,
insufficient or unreliable. The reasonable costs of all appraisals, inspection
reports and opinions of value, reasonably incurred by the Master Servicer or any
such third party pursuant to this paragraph shall be advanced by the Master
Servicer and shall constitute, and be reimbursable as, Servicing Advances. In
connection with the Master Servicer's determination of fair value, the Special
Servicer shall deliver to the Master Servicer the Determination Information for
the use of the Master Servicer or any such third party.
Notwithstanding anything contained in this Section 3.18(e) to the
contrary, if the Special Servicer or the Majority Certificateholder of the
Controlling Class, or any of their respective Affiliates, is identified in the
Purchase Option Notice as the Person expected to acquire the related Mortgage
Loan, and the Option Price is based upon the Special Servicer's fair value
determination, and the Master Servicer and the Special Servicer are Affiliates,
the Trustee shall determine whether the Option Price represents fair value for
the Defaulted Serviced Loan, in the manner set forth in Section 3.18(b) and as
soon as reasonably practicable but in any event within 30 days (except as such
period may be extended as set forth in this paragraph) of its receipt of the
Purchase Option Notice and Determination Information from the Special Servicer.
In determining whether the Option Price represents the fair value of such
Defaulted Serviced Loan, the Trustee may obtain an opinion as to the fair value
of such Defaulted Serviced Loans, taking into account the factors set forth in
Section 3.18(b), from a Qualified Appraiser or other Independent expert of
recognized standing having experience in evaluating the value of defaulted
mortgage loans, which opinion shall be based on a review, analysis and
evaluation of the Determination Information, and to the extent such Qualified
Appraiser or third party deems any such Determination Information to be
defective, incorrect, insufficient or unreliable, such Person may base its
opinion on such other information it deems reasonable or appropriate, and absent
manifest error, the Trustee may conclusively rely on the opinion of any such
Person that was chosen by the Trustee with reasonable care. Notwithstanding the
30-day time period referenced above in this paragraph, the Trustee will have an
additional 15 days to make a fair value determination if the Person referenced
in the immediately preceding sentence has determined that the Determination
Information is defective, incorrect, insufficient or unreliable. The reasonable
costs of all appraisals, inspection reports and opinions of value, reasonably
incurred by the Trustee or any such third party pursuant to this paragraph shall
be advanced by the Master Servicer and shall constitute, and be reimbursable as,
Servicing Advances. In connection with the Trustee's determination of fair value
the Special Servicer shall deliver to the Trustee the Determination Information
for the use of the Trustee or any such third party.
In the event a designated third party determines that the Option
Price is less than the fair value of the Defaulted Serviced Loan, such party
shall provide its determination, together with all information and reports it
relied upon in making such determination, to the Special Servicer, who shall
then adjust its fair value determination and, consequently, the Option Price,
pursuant to Section 3.18(b). The Special Servicer shall promptly provide written
notice of any adjustment of the Option Price to the Option Holder whose Purchase
Option has been declared effective pursuant to Section 3.18(d). Upon receipt of
such notice, such Option Holder shall have three Business Days to (i) accept the
Option Price as adjusted and proceed in accordance with Section 3.18(f), or (ii)
reject the Option Price as adjusted, in which case such Option Holder shall not
be obligated to close the purchase of the Defaulted Serviced Loan. Upon notice
from such Option Holder, or the Special Servicer, that such Option Holder
rejects the Option Price as adjusted, the Master Servicer and the Trustee shall
provide the notices described in the second paragraph of Section 3.18(f) and
thereafter any Option Holder may exercise its purchase option in accordance with
this Section 3.18, at the Option Price as adjusted.
(f) The Option Holder whose Purchase Option is declared effective
pursuant to Section 3.18(d) shall be required to pay the purchase price
specified in its Purchase Option Notice to the Master Servicer within ten
Business Days of its receipt of the Master Servicer's notice confirming that the
exercise of its Purchase Option is effective. Upon receipt of an Officer's
Certificate from the Master Servicer specifying the date for closing the
purchase of the related Defaulted Serviced Loan, and the purchase price to be
paid therefor, the Trustee shall deliver at such closing for release to or at
the direction of such Option Holder, the related Mortgage File, and shall
execute and deliver such instruments of transfer or assignment, in each case
without recourse, as shall be provided to it by such Option Holder and are
reasonably necessary to vest in the purchaser or any designee thereof the
ownership of such Mortgage Loan. In connection with any such purchase by any
Person other than it, the Special Servicer shall deliver the related Mortgage
File to or at the direction of the purchaser. In any case, the Master Servicer
shall deposit the purchase price into the Certificate Account within one
Business Day following receipt.
The Master Servicer shall immediately notify the Trustee and the
Special Servicer upon the holder of the effective Purchase Option's failure to
remit the purchase price specified in its Purchase Option Notice pursuant to
this Section 3.18(f). Thereafter, the Trustee shall notify each Option Holder of
such failure and any Option Holder may then exercise its purchase option in
accordance with this Section 3.18.
(g) Unless and until the Purchase Option with respect to any
Defaulted Serviced Loan is exercised, the Special Servicer shall pursue such
other resolution strategies with respect to such Defaulted Serviced Loan
including workout, foreclosure and sale of any REO Property, as the Special
Servicer may deem appropriate, consistent with the Asset Status Report and the
Servicing Standard; provided, however, the Special Servicer shall not sell any
Defaulted Serviced Loan (other than in connection with exercise of a related
Purchase Option).
(h) The Special Servicer shall sell an REO Property in the manner
set forth in Section 3.16(a). The Special Servicer may purchase any REO Property
at the Purchase Price therefor. The Special Servicer may also offer to sell to
any Person any REO Property, if and when the Special Servicer determines,
consistent with the Servicing Standard, that such a sale would be in the best
economic interests of the Trust Fund. The Special Servicer shall give the
Trustee, the Master Servicer and the Directing Certificateholder, the One
Stamford Forum Controlling Holder and the One Stamford Forum Note B Holder (if
the Serviced Whole Loan is involved), not less than ten days' prior written
notice of its intention to sell any such REO Property, in which case the Special
Servicer shall accept the highest offer received from any Person for any such
REO Property in an amount at least equal to the Purchase Price therefor. To the
extent permitted by applicable law, and subject to the Servicing Standard, the
Master Servicer, an Affiliate of the Master Servicer, the Special Servicer or an
Affiliate of the Special Servicer, or an employee of any of them may act as
broker in connection with the sale of any such REO Property and may retain from
the proceeds of such sale a brokerage commission that does not exceed the
commission that would have been earned by an independent broker pursuant to a
brokerage agreement entered into at arm's length.
In the absence of any such offer, the Special Servicer shall accept
the highest offer received from any Person that is determined by the Special
Servicer to be a fair price for such REO Property, if the highest offeror is a
Person other than the Special Servicer, the Master Servicer (if the Master
Servicer and Special Servicer are Affiliate) or the Majority Certificateholder
of the Controlling Class, or any of their respective Affiliates, or if such
price is determined to be such a price by the Trustee, if the highest offeror is
the Special Servicer, the Master Servicer (if the Master Servicer and Special
Servicer are Affiliate) or the Majority Certificateholder of the Controlling
Class, or any of their respective Affiliates. Notwithstanding anything to the
contrary herein, neither the Trustee, in its individual capacity, nor any of its
Affiliates may make an offer for or purchase any such REO Property pursuant
hereto.
The Special Servicer shall not be obligated by either of the
foregoing paragraphs or otherwise to accept the highest offer if the Special
Servicer determines, in accordance with the Servicing Standard, that rejection
of such offer would be in the best interests of the Certificateholders. In
addition, the Special Servicer may accept a lower offer if it determines, in
accordance with the Servicing Standard that acceptance of such offer would be in
the best interests of the Certificateholders (for example, if the prospective
buyer making the lower offer is more likely to perform its obligations, or the
terms offered by the prospective buyer making the lower offer are more
favorable).
In determining whether any offer received from the Special Servicer,
the Master Servicer (if the Master Servicer and Special Servicer are Affiliate)
or the Majority Certificateholder of the Controlling Class, or any of their
respective Affiliates represents a fair price for any such REO Property, the
Trustee shall obtain and may conclusively rely on an Appraisal from a Qualified
Appraiser, at the expense of the Trust Fund. In determining whether any offer
constitutes a fair price for any such REO Property, the Trustee (or, if
applicable, such Qualified Appraiser) shall take into account, and any appraiser
shall be instructed to take into account, as applicable, among other factors,
the physical condition of such REO Property, the state of the local economy and
the Trust Fund's obligation to comply with REMIC Provisions.
(i) Subject to the Servicing Standard and the REMIC Provisions, the
Special Servicer shall act on behalf of the Trust Fund in negotiating and taking
any other action necessary or appropriate in connection with the sale of any
such REO Property, including the collection of all amounts payable in connection
therewith. A sale of any such REO Property shall be without recourse to, or
representation or warranty by, the Trustee, the Depositor, any Servicer, or the
Trust Fund (except that any contract of sale and assignment and conveyance
documents may contain customary representations and warranties of title,
condition and authority so long as the only recourse for breach thereof is to
the Trust Fund) and, if consummated in accordance with the terms of this
Agreement, none of the Master Servicer, the Special Servicer, the Depositor or
the Trustee shall have any liability to the Trust Fund or any Certificateholder
with respect to the purchase price therefor accepted by the Special Servicer or
the Trustee.
(j) The Special Servicer shall, within two Business Days following
its receipt of available funds, remit to the Master Servicer the proceeds of any
sale after deduction of the expenses of such sale incurred in connection
therewith for deposit into the Certificate Account. The Trustee, upon receipt of
an Officer's Certificate from the Master Servicer to the effect that such
deposit has been made, shall release or cause to be released to the party or
parties effecting such purchase (or any designee thereof) the related Mortgage
File, and shall execute and deliver such instruments of transfer or assignment,
in each case without recourse, as shall be provided to it and are reasonably
necessary to vest in the purchaser of such Defaulted Serviced Loan effecting
such purchase (or any designee thereof) ownership of such Defaulted Serviced
Loan. In connection with any such purchase, the Special Servicer shall deliver
the related Servicing File to the purchaser of such Defaulted Serviced Loan with
the cooperation of the Master Servicer effecting such purchase (or any designee
thereof).
(k) Subject to Sections 3.18(a) through 3.18(j), the Special
Servicer shall act on behalf of the Trustee in negotiating and taking any other
action necessary or appropriate in connection with the sale of any Defaulted
Serviced Loan or REO Property, and the collection of all amounts payable in
connection therewith. In connection therewith, the Special Servicer may charge
prospective offerors, and may retain, fees that approximate the Special
Servicer's actual costs in the preparation and delivery of information
pertaining to such sales or evaluating offers without obligation to deposit such
amounts into the Certificate Account or if the Serviced Whole Loan is involved,
in the related Loan Custodial Account, provided no such fees and charges shall
be charged by the Special Servicer to the Controlling Class Option Holder or any
assignee in connection with the sale of Defaulted Serviced Loans. Any sale of a
Defaulted Serviced Loan or any REO Property shall be final and without recourse
to the Trustee or the Trust except as provided in Section 3.18(i), and if such
sale is consummated in accordance with the terms of this Agreement, none of the
Depositor, the Special Servicer, the Master Servicer or the Trustee shall have
any liability to any Certificateholder with respect to the purchase price
therefor accepted by the Special Servicer or the Trustee.
(l) Notwithstanding anything to the contrary herein, (i) each
Mezzanine Lender may be entitled to purchase the related Mortgage Loan in
accordance with the terms and conditions set forth in the related Mezzanine
Intercreditor Agreement, even after it has been purchased out of the Trust Fund
pursuant to this Section 3.18 and (ii) the One Stamford Forum Note B Holder may
be entitled to purchase the One Stamford Forum Note A Mortgage Loan in
accordance with the terms and conditions set forth in Section 11 of the One
Stamford Forum Intercreditor Agreement. Any purchase of a Specially Serviced
Loan that is purchased pursuant to this Section 3.18 will remain subject to the
purchase rights in each case, if applicable (1) of the related Mezzanine Lender
as set forth in the related Mezzanine Intercreditor Agreement and (2) the One
Stamford Forum Note B Holder as set forth in the One Stamford Forum
Intercreditor Agreement.
Section 3.19 Additional Obligations of the Master Servicer and the
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Special Servicer.
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(a) The Master Servicer shall maintain at its Primary Servicing
Office and shall, upon reasonable advance written notice, make available for
review by each Rating Agency and by any Certificateholder or Certificate Owner
or any Person identified to the Master Servicer as a prospective transferee of a
Certificate or an interest therein, copies of the Servicing Files; provided
that, if the Master Servicer in its reasonable, good faith determination
believes that any item of information contained in such Servicing Files is of a
nature that it should be conveyed to all Certificateholders at the same time, it
shall, as soon as reasonably possible following its receipt of any such item of
information, disclose such item of information to the Trustee as part of the
reports to be delivered to the Trustee by the Master Servicer pursuant to
Section 4.02(b), and until the Trustee has either disclosed such information to
all Certificateholders in a Distribution Date Statement or has properly filed
such information with the Commission on behalf of the Trust under the Exchange
Act, the Master Servicer shall be entitled to withhold such item of information
from any Certificateholder or Certificate Owner or prospective transferee of a
Certificate or an interest therein; and provided, further, that the Master
Servicer shall not be required to make particular items of information contained
in the Servicing File for any Loan available to any Person if the disclosure of
such particular items of information is expressly prohibited by applicable law
or the provisions of any related loan documents. Except as set forth in the
provisos to the preceding sentence, copies of all or any portion of any
Servicing File are to be made available by the Master Servicer upon request;
however, the Master Servicer shall be permitted to require payment of a sum
sufficient to cover the reasonable out-of-pocket costs for making such copies
(other than with respect to the Rating Agencies and the Majority
Certificateholder of the Controlling Class). The Special Servicer shall, as to
each Specially Serviced Loan and REO Property, promptly deliver to the Master
Servicer a copy of each document or instrument added to the related Servicing
File, and the Master Servicer shall in no way be in default under this Section
3.19(a) solely by reason of the Special Servicer's failure to do so.
In connection with providing access to or copies of the items
described in the preceding paragraph, the Master Servicer may require, unless
the Depositor directs otherwise, (a) in the case of Certificate Owners, a
written confirmation executed by the requesting Person, in form reasonably
satisfactory to the Master Servicer, generally to the effect that such Person is
a beneficial holder of Certificates and will otherwise keep such information
confidential and (b) in the case of a prospective purchaser, confirmation
executed by the requesting Person generally to the effect that such Person is a
prospective purchaser of a Certificate or an interest therein, is requesting the
information for use in evaluating a possible investment in Certificates and will
otherwise keep such information confidential. All Certificateholders, by the
acceptance of their Certificates, shall be deemed to have agreed to keep such
information confidential, except to the extent that the Depositor grants written
permission to the contrary or to the extent such information is public
information. The Master Servicer shall not be liable for the dissemination of
information in accordance with this Section 3.19(a).
(b) Promptly following the occurrence of an Appraisal Trigger Event
with respect to any Mortgage Loan or Serviced Whole Loan (each such Mortgage
Loan or Whole Loan and any related REO Serviced Loan, until it ceases to be such
in accordance with the following paragraph, a "Required Appraisal Serviced
Loan"), the Special Servicer shall obtain (or, if such Required Appraisal
Serviced Loan has a Stated Principal Balance of $2,000,000 or less, at its
discretion, conduct) an Appraisal of the related Mortgaged Property, unless an
Appraisal thereof had previously been obtained (or, if applicable, conducted)
within the preceding 12-month period and there has been no subsequent material
change in the circumstances surrounding the related Mortgaged Property that, in
the judgment of the Special Servicer, would materially affect the value of the
property, and shall deliver a copy of such Appraisal to the Trustee, the Master
Servicer, the Directing Certificateholder, the One Stamford Forum Note B Holder
(if the Serviced Whole Loan is involved), and any Requesting Subordinate
Certificateholder (subject to the second paragraph of Section 12.10). If such
Appraisal is obtained from a Qualified Appraiser, the cost thereof shall be
covered by, and be reimbursable as, a Servicing Advance. Promptly following the
receipt of, and based upon, such Appraisal, the Special Servicer shall determine
and report to the Trustee, the Master Servicer, the Directing Certificateholder,
the then applicable Appraisal Reduction Amount, if any, with respect to the
subject Required Appraisal Serviced Loan.
For so long as any Serviced Loan or REO Serviced Loan remains a
Required Appraisal Serviced Loan, the Special Servicer shall, within 30 days of
each anniversary of such loan's having become a Required Appraisal Serviced
Loan, obtain (or, if such Required Appraisal Serviced Loan has a Stated
Principal Balance of $2,000,000 or less, at its discretion, conduct) an update
of the prior Appraisal, and shall deliver a copy of such update to the Trustee,
the Master Servicer, the Directing Certificateholder. If such update is obtained
from a Qualified Appraiser, the cost thereof shall be covered by, and be
reimbursable as, a Servicing Advance. Promptly following the receipt of, and
based upon, such update, the Special Servicer shall redetermine and report to
the Trustee, the Master Servicer, the Directing Certificateholder and the One
Stamford Forum Note B Holder (if the Serviced Whole Loan is involved), the then
applicable Appraisal Reduction Amount, if any, with respect to the subject
Required Appraisal Serviced Loan.
The Directing Certificateholder and the One Stamford Forum Note B
Holder (if the Serviced Whole Loan is involved) have the right at any time to
require that the Special Servicer obtain a new Appraisal of the subject
Mortgaged Property in accordance with MAI standards from a Qualified Appraiser
selected by the Special Servicer, at the expense of the Controlling Class
Certificateholder, the One Stamford Forum Note B Holder (if the Serviced Whole
Loan is involved). Upon receipt of such Appraisal the Special Servicer shall
deliver a copy thereof to the Trustee, the Master Servicer, the Directing
Certificateholder and the One Stamford Forum Note B Holder (if the Serviced
Whole Loan is involved). Promptly following the receipt of, and based upon, such
Appraisal, the Special Servicer shall redetermine and report to the Trustee, the
Master Servicer, the Directing Certificateholder and the One Stamford Forum Note
B Holder (if the Serviced Whole Loan is involved), the then applicable Appraisal
Reduction Amount, if any, with respect to the subject Required Appraisal
Serviced Loan.
(c) The Master Servicer and the Special Servicer shall each deliver
to the other, to the Trustee (but only upon its request) and to the Directing
Certificateholder and the One Stamford Forum Note B Holder (if the Serviced
Whole Loan is involved), copies of all Appraisals, environmental reports and
engineering reports (or, in each case, updates thereof) obtained with respect to
any Mortgaged Property or REO Property. Upon the request of any Rating Agency or
any Holder of a Non-Registered Certificate (except a Class V, Class R-I or Class
R-II Certificate), pursuant to Section 8.12(b), the Trustee will inform the
Master Servicer or Special Servicer, as applicable, of such request and, if
necessary, the Master Servicer or Special Servicer, as applicable, will deliver
instructions, whereupon either such party, as applicable, shall deliver copies
of any of the items delivered pursuant to the preceding sentence to such
requesting Person.
(d) No more frequently than once per calendar month, the Special
Servicer may require the Master Servicer, and the Master Servicer shall be
obligated subject to the second following paragraph to reimburse the Special
Servicer for any Servicing Advances that were made by the Special Servicer
(notwithstanding the fact that it has no obligation to make such Servicing
Advances), but not previously reimbursed (whether pursuant to this Section
3.19(d) or otherwise) to the Special Servicer, and to pay the Special Servicer
interest thereon at the Reimbursement Rate from the date made to, but not
including, the date of reimbursement. Such reimbursement and any accompanying
payment of interest shall be made within ten days of the request therefor by
wire transfer of immediately available funds to an account designated by the
Special Servicer. Upon the Master Servicer's reimbursement to the Special
Servicer of any Servicing Advance and payment to the Special Servicer of
interest thereon, all in accordance with this Section 3.19(d), the Master
Servicer shall for all purposes of this Agreement be deemed to have made such
Servicing Advance at the same time as the Special Servicer originally made such
Advance, and accordingly, the Master Servicer shall be entitled to reimbursement
for such Advance, together with Advance Interest thereon, at the same time, in
the same manner and to the same extent as the Master Servicer would otherwise
have been entitled if it had actually made such Servicing Advance.
Notwithstanding anything to the contrary contained in this
Agreement, if the Special Servicer (i) is required under any other provision of
this Agreement to direct the Master Servicer to make a Servicing Advance or (ii)
is otherwise aware a reasonable period in advance that it is reasonably likely
that the Special Servicer will incur a cost or expense that will, when incurred,
constitute a Servicing Advance, the Special Servicer shall (in the case of
clause (i) preceding), and shall use reasonable efforts to (in the case of
clause (ii) preceding), request that the Master Servicer make such Servicing
Advance, such request to be made in writing and confirmed by both parties and in
a timely manner that does not materially and adversely affect the interests of
any Certificateholder, and accompanied by sufficient information for the Master
Servicer to make recoverability determinations, and at least ten Business Days
prior to the date on which failure to make such Servicing Advance would (with
notice from the Trustee regardless of whether such notice is actually received)
constitute an Event of Default pursuant to Section 7.01(a)(v); provided,
however, that the Special Servicer (with respect to Specially Serviced Loans and
REO Properties) is allowed but not required to make any Servicing Advance that
it fails to timely request the Master Servicer to make. Subject to the following
paragraph, the Master Servicer shall have the obligation to make any such
Servicing Advance that it is requested by the Special Servicer to make within
five Business Days of the Master Servicer's receipt of such request and such
information and documents as are reasonably necessary for the Master Servicer to
make such Servicing Advance and to determine recoverability. The Master Servicer
shall be entitled to reimbursement for any Servicing Advance made by it at the
direction of the Special Servicer, together with Advance Interest thereon, at
the same time, in the same manner and to the same extent as the Master Servicer
is entitled with respect to any other Servicing Advance made thereby.
Notwithstanding the foregoing provisions of this Section 3.19(d) or
any other provision of this Agreement to the contrary, the Master Servicer shall
not be required to reimburse the Special Servicer for, or make at the Special
Servicer's direction, any Servicing Advance if the Master Servicer determines in
its reasonable, good faith judgment that the Servicing Advance that the Special
Servicer is directing the Master Servicer to reimburse it for or make hereunder,
although not characterized by the Special Servicer as a Nonrecoverable Servicing
Advance, is or would be, if made, a Nonrecoverable Servicing Advance. The Master
Servicer shall notify the Special Servicer and the Trustee in writing of such
determination. Such notice shall not obligate the Special Servicer to make such
Servicing Advance.
(e) The Master Servicer shall deliver to the Trustee for deposit
into the Distribution Account by 1:30 p.m. (New York City time) on each Master
Servicer Remittance Date, without any right of reimbursement therefor, a cash
payment (a "Compensating Interest Payment") in an amount equal to the sum of (i)
the aggregate amount of Balloon Payment Interest Shortfalls, if any, incurred in
connection with Balloon Payments received in respect of the Mortgage Pool during
the most recently ended Collection Period, plus (ii) the lesser of (A) the
aggregate amount of Prepayment Interest Shortfalls, if any, incurred in
connection with Principal Prepayments received in respect of the Mortgage Pool
during the most recently ended Collection Period, and (B) the aggregate of (1)
that portion of its Master Servicing Fees for the related Collection Period that
is, in the case of each and every Loan and REO Serviced Loan for which such
Master Servicing Fees are being paid in such Collection Period, calculated at
0.01% per annum, and (2) all Prepayment Interest Excesses received in respect of
the Mortgage Pool during the most recently ended Collection Period, plus (iii)
in the event that any Principal Prepayment was received on the last Business Day
of the second most recently ended Collection Period, but for any reason was not
included as part of the Master Servicer Remittance Amount for the preceding
Master Servicer Remittance Date (other than because of application of the
subject Principal Prepayment in accordance with Section 3.05(a) for another
purpose), the total of all interest and other income accrued or earned on the
amount of such Principal Prepayment while it is on deposit in the Certificate
Account or, in the case of a Mortgage Loan included in the Serviced Whole Loan,
Section 3.05(f); provided, however, that if a Prepayment Interest Shortfall
occurs as a result of the Master Servicer's allowing the related Borrower to
deviate from the terms of the related loan documents regarding principal
prepayments (other than (v) on a Specially Serviced Loan, (w) a payment of
insurance proceeds or condemnation proceeds, (x) a payment subsequent to a
default under the related loan documents (provided the Master Servicer
reasonably believes that acceptance of such payment is consistent with the
Servicing Standard and has obtained the consent of the Special Servicer), (y)
pursuant to applicable law or a court order, or (z) at the request or with the
consent of the Directing Certificateholder), then, for purposes of calculating
the Compensating Interest Payment for the subject Collection Period, the amount
in clause (ii) above shall be the aggregate of (A) all Master Servicing Fees for
such Collection Period and (B) all Prepayment Interest Excesses and, to the
extent earned on principal prepayments, Net Investment Earnings received by the
Master Servicer during such Collection Period; and provided, further, that the
rights of the Certificateholders to offset the aggregate Prepayment Interest
Shortfalls shall not be cumulative.
(f) Except under the same circumstances that it would be permitted
to waive a prepayment lockout provision in the subject Serviced Loan pursuant to
Section 3.20(a), neither the Master Servicer nor the Special Servicer shall
consent to any Mortgagor's prepaying its Loan, partially or in its entirety, if
the Mortgagor would be prohibited from doing so without such consent. In each
case subject to the Servicing Standard and applicable law and to the extent
permitted by the related loan documents, the Master Servicer and the Special
Servicer agree not to accept any Principal Prepayments with respect to any
Serviced Loan on a date other than the then applicable due date therefor except
that the Special Servicer shall be permitted to accept Principal Prepayments
with the consent of the Directing Certificateholder.
(g) The Master Servicer shall not exercise any discretionary right
it has with respect to any Serviced Loan pursuant to the related Mortgage Note
or Mortgage to apply any amounts maintained as an escrow or reserve to the
principal balance of such Serviced Loan except in the case of a default
thereunder.
(h) The Master Servicer shall send written notice to each Borrower
to the effect that, if applicable, the Master Servicer and/or the Trustee have
been appointed as the "designee" of the lender under any related Lock-Box
Agreement.
(i) In connection with each prepayment of principal received
hereunder, the Master Servicer shall calculate any applicable Prepayment Premium
under the terms of the related Mortgage Note. Promptly following its
determination thereof, the Master Servicer shall disclose to the Trustee its
calculation of any such Prepayment Premium.
(j) The Master Servicer shall, as to each Serviced Loan that is
secured by the interest of the related Mortgagor under a Ground Lease, promptly
(and in any event within 45 days) after the Closing Date notify the related
ground lessor of the transfer of such Serviced Loan to the Trust pursuant to
this Agreement and inform such ground lessor that any notices of default under
the related Ground Lease should thereafter be forwarded to the Master Servicer.
(k) Except as required under the loan documents, Mezzanine
Intercreditor Agreement or applicable law and subject to Section 3.21(f), the
Special Servicer shall not, without the consent of the Directing
Certificateholder, consent to the foreclosure of any Mezzanine Loan or to the
transfer of any Mezzanine Loan.
Section 3.20 Modifications, Waivers, Amendments and Consents.
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(a) The Master Servicer (solely as to Performing Serviced Loans) and
the Special Servicer (as to Specially Serviced Loans) each may, consistent with
the Servicing Standard, agree to any modification, waiver or amendment of any
term of, forgive or defer the payment of interest (including, without
limitation, Default Interest and Excess Interest) on and principal of, forgive
late payment charges and Prepayment Premiums on, permit the release, addition or
substitution of collateral securing, and/or permit the release of the Mortgagor
on or any guarantor of any Serviced Loan it is required to service and
administer hereunder without the consent of the Trustee or any
Certificateholder, subject, however, to Section 3.02, Section 3.08, Section 3.21
and Section 3.28 and each of the following limitations, conditions and
restrictions:
(i) other than as provided in Sections 2.03(b), 3.02, 3.08 and
3.20(f), the Master Servicer shall not agree to any modification, waiver
or amendment of any term of, or take any of the other acts referenced in
this Section 3.20(a) with respect to, any Serviced Loan, that would affect
the amount or timing of any related payment of principal, interest or
other amount payable under such Serviced Loan or affect the security for
such Serviced Loan, unless the Master Servicer has obtained the consent of
the Special Servicer (it being understood and agreed that (A) the Master
Servicer shall promptly provide the Special Servicer with notice of any
Mortgagor's request for such modification, waiver or amendment, the Master
Servicer's recommendations and analysis, and with all information
reasonably available to the Master Servicer that the Special Servicer may
reasonably request to withhold or grant any such consent, each of which
shall be provided reasonably promptly in accordance with the Servicing
Standard, (B) the Special Servicer shall decide whether to withhold or
grant such consent in accordance with the Servicing Standard and (C) if
any such request has not been expressly responded to within ten Business
Days (subject to any extensions of applicable time periods required if the
Special Servicer is required by this Agreement to seek the consent of
third parties) of the Special Servicer's receipt from the Master Servicer
of the Master Servicer's recommendations and analysis and all information
reasonably requested thereby and reasonably available to the Master
Servicer, as such time period may be extended if the Special Servicer is
required to seek the consent of the Directing Certificateholder, the One
Stamford Forum Controlling Holder, any mezzanine lender, or the Rating
Agencies, to make an informed decision (or, if the Special Servicer did
not request any information, within ten Business Days from such notice),
such consent shall be deemed to have been granted);
(ii) Subject to the restrictions on extensions in Section
3.20(a)(iv), the Master Servicer may (with the consent of the Directing
Certificateholder, subject, however, to Section 3.21(f)) extend the
maturity date of any Mortgage Loan (including the Serviced Whole Loan, if
applicable) for up to six months (but not more than two such extensions by
the Master Servicer shall occur); provided, however, the Master Servicer
shall have no such right with respect to the One Stamford Forum Whole Loan
for so long as the One Stamford Forum Note B Holder is the One Stamford
Forum Controlling Holder;
(iii) other than as provided in Sections 3.02 and 3.08, the Special
Servicer shall not agree to (or, in the case of a Performing Serviced
Loan, consent to the Master Servicer's agreeing to) any modification,
waiver or amendment of any term of, or take (or, in the case of a
Performing Serviced Loan, consent to the Master Servicer's taking) any of
the other acts referenced in this Section 3.20(a) with respect to, any
Serviced Loan that would affect the amount or timing of any related
payment of principal, interest or other amount payable thereunder or, in
the reasonable, good faith judgment of the Special Servicer, would add to,
release, substitute for, or otherwise alter a material amount of the
security for such Serviced Loan, unless a material default on such
Serviced Loan has occurred or, in the reasonable, good faith judgment of
the Special Servicer, a default in respect of payment on such Serviced
Loan is reasonably foreseeable, and such modification, waiver, amendment
or other action is reasonably likely to produce a greater recovery to the
Certificateholders, or if the Serviced Whole Loan is affected, the
interests of the Certificateholders and the One Stamford Forum Note B
Holder (as a collective whole taking into account the subordination of the
One Stamford Forum Note B) on a net present value basis than would
liquidation;
(iv) the Special Servicer shall not extend (or, in the case of a
Performing Serviced Loan, consent to the Master Servicer's extending) the
date on which any Balloon Payment is scheduled to be due on any Serviced
Loan to a date beyond the earliest of (A) five years prior to the Rated
Final Distribution Date, and (B) if such Serviced Loan is secured by a
Mortgage solely or primarily on the related Mortgagor's leasehold interest
in the related Mortgaged Property, 20 years (or, to the extent consistent
with the Servicing Standard, giving due consideration to the remaining
term of the Ground Lease, ten years) prior to the end of the then current
term of the related Ground Lease (plus any unilateral options to extend);
(v) neither the Master Servicer nor the Special Servicer shall make
or permit any modification, waiver or amendment of any term of, or take
any of the other acts referenced in this Section 3.20(a) with respect to,
any Serviced Loan that would result in an Adverse REMIC Event with respect
to either of REMIC I or REMIC II;
(vi) subject to applicable law, the related loan documents and the
Servicing Standard, neither the Master Servicer nor the Special Servicer
shall permit any modification, waiver or amendment of any term of any
Serviced Loan unless all related fees and expenses are paid by the related
Mortgagor;
(vii) the Special Servicer shall not permit (or, in the case of a
Performing Serviced Loan, consent to the Master Servicer's permitting) any
Mortgagor to add or substitute any real estate collateral for its Serviced
Loan unless the Special Servicer shall have first determined in its
reasonable, good faith judgment, based upon a Phase I Environmental
Assessment (and any additional environmental testing that the Special
Servicer deems necessary and prudent) conducted by an Independent Person
who regularly conducts Phase I Environmental Assessments, at the expense
of the Mortgagor, that such additional or substitute collateral is in
compliance with applicable environmental laws and regulations and that
there are no circumstances or conditions present with respect to such new
collateral relating to the use, management or disposal of any Hazardous
Materials for which investigation, testing, monitoring, containment,
clean-up or remediation would be required under any then applicable
environmental laws or regulations; and
(viii) the Special Servicer shall not permit the release, including
in connection with a substitution contemplated by clause (vii) above, of
any collateral securing an outstanding Serviced Loan, except as provided
in Section 3.09(d) or Section 3.26, or except where a Serviced Loan (or,
in the case of a Cross-Collateralized Set, where such entire
Cross-Collateralized Set) is satisfied, or except in the case of a release
where (A) either (1) the use of the collateral to be released will not, in
the good faith and reasonable judgment of the Special Servicer, materially
and adversely affect the net operating income being generated by or the
use of the related Mortgaged Property, or (2) there is a corresponding
principal pay down of such Serviced Loan in an amount at least equal to
the appraised value of the collateral to be released (or substitute
collateral with an appraised value at least equal to that of the
collateral to be released, is delivered), (B) the remaining Mortgaged
Property (together with any substitute collateral) is, in the Special
Servicer's good faith and reasonable judgment, adequate security for the
remaining Serviced Loan and (C) such release would not, in and of itself,
result in an Adverse Rating Event with respect to any Class of Rated
Certificates (as confirmed in writing to the Trustee by each Rating
Agency);
provided that the limitations, conditions and restrictions set forth in clauses
(i) through (vii) above shall not apply to any act or event (including, without
limitation, a release, substitution or addition of collateral) in respect of any
Serviced Loan that either occurs automatically, or results from the exercise of
a unilateral option by the related Mortgagor within the meaning of Treasury
Regulations Section 1.1001-3(c)(2)(iii), in any event under the terms of such
Serviced Loan in effect on the Closing Date (or, in the case of a Replacement
Mortgage Loan, on the related date of substitution); and provided, further,
that, notwithstanding clauses (i) through (vii) above, neither the Master
Servicer nor the Special Servicer shall be required to oppose the confirmation
of a plan in any bankruptcy or similar proceeding involving a Mortgagor if, in
its reasonable, good faith judgment, such opposition would not ultimately
prevent the confirmation of such plan or one substantially similar; and
provided, further, that, notwithstanding clause (vii) above, neither the Master
Servicer nor the Special Servicer shall be required to obtain any confirmation
of the Certificate ratings from the Rating Agencies to grant, or to subordinate
the lien of Loans to, easements, rights-of-way or similar agreements that do not
materially affect the use or value of a Mortgaged Property or the Mortgagor's
ability to make any payments with respect to the related Loan.
Notwithstanding anything to the contrary herein, the Special
Servicer (with the consent of the Directing Certificateholder, subject to the
limitations of Section 3.21(f)) may, consistent with the Servicing Standard,
agree to any waiver, modification or amendment of a Mortgage Loan that is not in
default or as to which default is not reasonably foreseeable if it consults with
counsel (and if it is determined by the Special Servicer to be necessary,
provides the Trustee with an Opinion of Counsel (which shall be at the expense
of the related Mortgagor or such other Person requesting such modification or,
if such expense cannot be collected from the related Mortgagor or such other
Person, to be paid by the Master Servicer as a Servicing Advance to the extent
such Advance would not be a Nonrecoverable Servicing Advance) to obtain advice
regarding whether the contemplated waiver, modification or amendment (i) will
not be a "significant modification" of the Mortgage Loan within the meaning of
Treasury Regulations Section 1.860G-2(b), and (ii) will not cause (x) REMIC I or
REMIC II to fail to qualify as a REMIC for purposes of the Code, or (ii) REMIC I
or REMIC II to be subject to any tax under the REMIC Provisions.
(b) Neither the Master Servicer nor the Special Servicer shall have
any liability to the Trust, the Certificateholders and in the case of the
Serviced Whole Loan, the One Stamford Forum Note B Holder or any other Person if
its analysis and determination that the modification, waiver, amendment or other
action contemplated by Section 3.20(a) is reasonably likely to produce a greater
recovery to Certificateholders, or if the Serviced Whole Loan is affected, the
interests of the Certificateholders and the One Stamford Forum Note B Holder (as
a collective whole taking into account the subordination of the One Stamford
Forum Note B) on a net present value basis than would liquidation, should prove
to be wrong or incorrect, so long as the analysis and determination were made on
a reasonable basis by the Special Servicer or the Master Servicer, as
applicable, consistent with the Servicing Standard. Each such determination
shall be evidenced by an Officer's Certificate to such effect to be delivered by
the Special Servicer to the Trustee, the Directing Certificateholder and the One
Stamford Forum Note B Holder (if the Serviced Whole Loan is involved). The
Special Servicer shall include with any such Officer's Certificate the
supporting documentation forming the basis for its conclusion.
(c) Any payment of interest that is deferred pursuant to Section
3.20(a) shall not, for purposes hereof, including, without limitation,
calculating monthly distributions to Certificateholders, be added to the unpaid
principal balance or Stated Principal Balance of the related Serviced Loan,
notwithstanding that the terms of such Serviced Loan so permit or that such
interest may actually be capitalized.
(d) The Master Servicer (as to Performing Serviced Loans) and the
Special Servicer (as to Specially Serviced Loans) each may, as a condition to
its granting any request by a Mortgagor for consent, modification, waiver or
indulgence or any other matter or thing, the granting of which is within the
Master Servicer's or Special Servicer's, as the case may be, discretion pursuant
to the terms of the instruments evidencing or securing the related Serviced Loan
and is permitted by the terms of this Agreement, require that such Mortgagor pay
to it, as additional servicing compensation, a reasonable fee relating to such
consent, modification, waiver or indulgence (not to exceed 1.0% of the unpaid
principal balance of the related Serviced Loan) for the additional services
performed in connection with such request, together with any related costs and
expenses incurred by it; provided that the charging of such fees would not
otherwise constitute a "significant modification" of the Serviced Loan pursuant
to Treasury Regulations Section 1.860G-2(b). All such fees collected by the
Master Servicer and/or the Special Servicer shall be allocable between such
parties, as Additional Master Servicing Compensation and Additional Special
Servicing Compensation, respectively, as provided in Section 3.11.
(e) All modifications, waivers, amendments and other actions entered
into or taken in respect of the Serviced Loans pursuant to the preceding
subsections of this Section 3.20 shall be in writing. Each of the Master
Servicer and the Special Servicer shall notify the other such party, the
Trustee, the Directing Certificateholder and the One Stamford Forum Note B
Holder (if the Serviced Whole Loan is involved), in writing, of any
modification, waiver, amendment or other action entered into or taken in respect
of any Serviced Loan pursuant to this Section 3.20 and the date thereof, and
shall deliver to the Trustee or the related Custodian for deposit into the
related Mortgage File (with a copy to the other such party), an original
counterpart of the agreement relating to such modification, waiver, amendment or
other action, promptly (and in any event within ten Business Days) following the
execution thereof. In addition, following the execution of any modification,
waiver or amendment agreed to by the Special Servicer pursuant to Section
3.20(a), the Special Servicer shall deliver to the Master Servicer and the
Trustee an Officer's Certificate setting forth in reasonable detail the basis of
the determination made by it pursuant to clause (ii) of Section 3.20(a).
(f) With respect to any ARD Loan after its Anticipated Repayment
Date, the Master Servicer shall be permitted to waive all or any accrued Excess
Interest if, prior to the related maturity date, the related Mortgagor has
requested the right to prepay the Loan in full together with all payments
required by the Serviced Loan in connection with such prepayment except for all
or a portion of accrued Excess Interest; provided, that the Master Servicer's
determination to waive the right to such accrued Excess Interest is reasonably
likely to produce a greater payment to Certificateholders on a net present value
basis than a refusal to waive the right to such Excess Interest. Any such waiver
shall not be effective until such payment is tendered. The Master Servicer shall
have no liability to the Trust, the Certificateholders or any other person so
long as such determination is based on such criteria. Notwithstanding anything
contained in this Agreement to the foregoing, the Master Servicer shall be
required to seek the consent of the Directing Certificateholder and provide to
the Directing Certificateholder any information that the Directing
Certificateholder may reasonably request in order to grant or deny its consent,
provided that such information is in the possession of the Master Servicer,
prior to waiving any Excess Interest. The Directing Certificateholder's consent
to a waiver shall be deemed granted if the Directing Certificateholder fails to
respond to such request within ten Business Days of its receipt of such request.
Except as permitted in Section 3.20(a), the Special Servicer shall have no right
to waive the payment of Excess Interest.
(g) The Master Servicer shall not be required to seek the consent of
the Special Servicer or any Certificateholder or obtain any confirmation of the
Certificate ratings from the Rating Agencies (unless otherwise set forth in the
related Intercreditor Agreement with respect to the Serviced Whole Loan) to
approve the following modifications, waivers or amendments of the Loans: (i)
waivers of minor covenant defaults (other than financial covenants), including
late financial statements; (ii) releases of (A) non-material parcels of a
Mortgaged Property subject to condemnation; (B) parcels of a Mortgaged Property
not given any value in the underwriting of the Loan; or (C) similar non-material
parcels of a Mortgaged Property; (iii) grants of easements or subordinations of
the lien of Loans to easements that do not materially affect the use or value of
a Mortgaged Property or a borrower's ability to make any payments with respect
to the related Loan; and (iv) approving routine leasing activities, including
subordination, non-disturbance and attornment agreements, with respect to leases
(A) where the related lease constitutes less than the greater of (x) 20% of the
total square footage of the related Mortgaged Property and (y) 20,000 total
square feet, (B) that would be considered "at market rates" (i.e. the space is
being leased at rates which are not materially above or materially below the
rates that would be offered by similarly situated properties where the Mortgaged
Property is located in the reasonable judgment of a commercially prudent
commercial mortgage loan servicer) and (C) that are not ground leases; provided
that (w) any such modification, waiver or amendment would not in any way affect
a payment term of the Certificates, (x) any such modification, waiver or
amendment would not constitute a "significant modification" of such Loan
pursuant to Treasury Regulations Section 1.860G-2(b) and would not otherwise
constitute an Adverse REMIC Event or Adverse Grantor Trust Event (y) agreeing to
any such modification, waiver or amendment would be consistent with the
Servicing Standard, and (z) agreeing to any such modification, waiver or
amendment shall not violate the terms, provisions or limitations of this
Agreement or any other document contemplated hereby.
The Special Servicer, with respect to any request that the Master
Servicer is required to seek the approval or consent thereof under this Section
3.20(g), 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 or such
longer time as is applicable if Directing Certificateholder consent is required;
it being understood, however, that the Special Servicer shall forward any
request for approval to the Directing Certificateholder within five Business
Days of receipt of the Master Servicer's request thereof and the ten Business
Day period with respect to Directing Certificateholder approvals in Section
3.21(e) still applies such that, if there is not a response after 15 Business
Days, the requested approval and consent shall be deemed approved and consented
to by the Special Servicer and the Directing Certificateholder. 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.
(h) In connection with granting an extension of the maturity date of
any Loan in accordance with Section 3.20(a), the Special Servicer, in the case
of a Specially Serviced Loan, and the Master Servicer, in the case of a
Performing Serviced Loan, shall each cause the related Mortgagor to agree, if it
has not already done so pursuant to the existing loan documents, to thereafter
deliver to the Special Servicer, the Trustee, the Directing Certificateholder
and the One Stamford Forum Note B Holder (if the Serviced Whole Loan is
involved), audited operating statements on a quarterly basis with respect to the
related Mortgaged Property, provided that the Special Servicer or the Master
Servicer, as the case may be, may, in its sole discretion, waive the requirement
that such statements be audited.
(i) If the Master Servicer or the Special Servicer collects a
modification fee or a modification application fee in connection with a
modification or proposed modification of a Serviced Loan, then the Master
Servicer or the Special Servicer, as applicable, will apply that fee to cover
the costs and expenses associated with that modification or proposed
modification that are not otherwise paid by the related Mortgagor and that would
otherwise be payable or reimbursable out of the Trust Fund, including any Rating
Agency fees and expenses. Any remaining portion of such modification fee (such
remaining portion, a "Net Modification Fee") or of such modification application
fee (such remaining portion, a "Net Modification Application Fee") will be
applied as additional compensation to the Master Servicer or the Special
Servicer in accordance with Section 3.11.
Section 3.21 Transfer of Servicing Between Master Servicer and
-------------------------------------------------
Special Servicer; Record Keeping; Asset Status Report.
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(a) Upon determining that a Servicing Transfer Event has occurred
with respect to any Serviced Loan, the Master Servicer shall immediately give
notice thereof to the Directing Certificateholder and the One Stamford Forum
Note B Holder (if the Serviced Whole Loan is involved), and deliver the related
Servicing File to the Special Servicer and shall use its best efforts to provide
the Special Servicer with all information, documents (or copies thereof) and
records (including records stored electronically on computer tapes, magnetic
discs and the like) relating to the Serviced Loan and reasonably requested by
the Special Servicer to enable it to assume its functions hereunder with respect
thereto without acting through a Sub-Servicer. Notwithstanding anything in
Section 2.01(b) or any other provision of this Agreement to the contrary, the
copying and delivery of such documents, instruments, items, records and
information shall not be at the expense of the Special Servicer. At its option,
although its Sub-Servicing Agreement is temporarily suspended, the related
Sub-Servicer, without any compensation therefor, may retain Loans on its
computer systems while such Loans are Specially Serviced Loans, provided that no
Sub-Servicer shall take any action with respect thereto so long as such Loan is
a Specially Serviced Loan and provided that the Master Servicer shall assume all
the Master Servicing duties with respect to that Loan as provided in the second
succeeding paragraph. The Master Servicer shall use its best efforts to comply
with the third preceding sentence within five Business Days of the occurrence of
each related Servicing Transfer Event. The Master Servicer shall deliver to each
Holder of a Non-Registered Certificate (except a Class V, Class R-I or Class
R-II Certificate) that shall have requested a copy of any such notice a copy of
the notice of such Servicing Transfer Event provided by the Master Servicer to
the Special Servicer pursuant to this Section. No later than ten Business Days
before the Master Servicer is required to deliver a copy of the related
Servicing File to the Special Servicer, it shall review the Servicing File and
request from the Trustee any material documents that it is aware are missing
from the Servicing File. If the related Sub-Servicer elects not to retain
Specially Serviced Loans on its computer systems, then such Sub-Servicer shall
return all Mortgage Files to the Master Servicer.
Upon determining that a Specially Serviced Loan has become a
Corrected Serviced Loan, the Special Servicer shall promptly give notice thereof
to the Master Servicer and to the Directing Certificateholder and the One
Stamford Forum Note B Holder (if the Serviced Whole Loan is involved), and
return the related Servicing File to the Master Servicer within five Business
Days and upon giving such notice and returning such Servicing File, to the
Master Servicer, the Special Servicer's obligation to service such Loan, and the
Special Servicer's right to receive the Special Servicing Fee with respect to
such Loan, shall terminate, and the obligations of the Master Servicer to
service and administer such Loan shall resume.
Notwithstanding other provisions in this Agreement to the contrary,
the Master Servicer shall remain responsible for the accounting, data
collection, reporting and other basic Master Servicer administrative functions
with respect to the Specially Serviced Loans, provided that the Master Servicer
shall establish reasonable procedures as to the application of Special Servicer
receipts and tendered payments, and the Special Servicer shall have the
exclusive responsibility for and authority over all contacts (including
collection, which information shall be provided by the Master Servicer) with and
notices to Mortgagors and similar matters relating to each Specially Serviced
Loan and the related Mortgaged Property.
Also notwithstanding anything herein to the contrary, in connection
with the transfer to the Special Servicer of the servicing, subject to Section
2.03, of a Cross-Collateralized Mortgage Loan as a result of a Servicing
Transfer Event or the reassumption of servicing responsibilities by the Master
Servicer with respect to any such Serviced Loan upon its becoming a Corrected
Serviced Loan, the Master Servicer and the Special Servicer shall each transfer
to the other, as and when applicable, the servicing of all other
Cross-Collateralized Mortgage Loans constituting part of the same
Cross-Collateralized Set; provided that no Cross-Collateralized Mortgage Loan
may become a Corrected Serviced Loan at any time that a continuing Servicing
Transfer Event exists with respect to another Cross-Collateralized Mortgage Loan
in the same Cross-Collateralized Set.
(b) In servicing any Specially Serviced Loans, the Special Servicer
shall provide to the Trustee the originals, of documents contemplated by the
definition of "Mortgage File" and generated while such Serviced Loan is a
Specially Serviced Loan, for inclusion in the related Mortgage File (with a copy
of each such original to the Master Servicer), and provide to the Master
Servicer copies of any additional related Serviced Loan information, including
correspondence with the related Mortgagor generated while such Serviced Loan is
a Specially Serviced Loan.
(c) Notwithstanding anything in this Agreement to the contrary, in
the event that the Master Servicer and the Special Servicer are the same Person,
all notices, certificates, information, consents and documents required to be
given or delivered by the Master Servicer to the Special Servicer or vice versa
shall be deemed to be given or delivered, as the case may be, without the
necessity of any action on such Person's part.
(d) No later than 45 days after the date the servicing of a Serviced
Loan is transferred from the Master Servicer to the Special Servicer pursuant to
the terms of this Agreement, the Special Servicer shall deliver to each Rating
Agency, the Master Servicer, the Trustee, the One Stamford Forum Note B Holder
(if the Serviced Whole Loan is involved), and the Directing Certificateholder a
report (the "Asset Status Report") with respect to such Serviced Loan and the
related Mortgaged Property. Such Asset Status Report shall set forth the
following information to the extent reasonably determinable:
(i) a summary of the status of such Specially Serviced Loan and any
negotiations with the related Mortgagor;
(ii) a discussion of the legal and environmental considerations
reasonably known to the Special Servicer (including without limitation by
reason of any Phase I Environmental Assessment and any additional
environmental testing contemplated by Section 3.09), consistent with the
Servicing Standard, that are applicable to the exercise of remedies set
forth herein and to the enforcement of any related guaranties or other
collateral for the related Serviced Loan and whether outside legal counsel
has been retained;
(iii) the most current rent roll and income or operating statement
available for the related Mortgaged Property;
(iv) the Special Servicer's recommendations on how such Specially
Serviced Loan might be returned to performing status and returned to the
Master Servicer for regular servicing or otherwise realized upon;
(v) the Appraised Value of the Mortgaged Property together with the
assumptions used in the calculation thereof (which the Special Servicer
may satisfy by providing a copy of the last obtained Appraisal); and
(vi) such other information as the Special Servicer deems relevant
in light of the Servicing Standard.
If within ten Business Days of receiving an Asset Status Report, the
Directing Certificateholder (except with respect to the Serviced Whole Loan) or
the One Stamford Forum Controlling Holder (if the Serviced Whole Loan is
involved), does not disapprove such Asset Status Report in writing, the Special
Servicer shall implement the recommended action as outlined in such Asset Status
Report; provided, however, that the Special Servicer may not take any action
that is contrary to applicable law, the Servicing Standard or the terms of the
applicable loan documents; provided, further that if the Special Servicer
determines that the failure to take any action set forth in such Asset Status
Report would violate the Servicing Standard, the Special Servicer may implement
the recommended action outlined in such Asset Status Report without waiting for
the Directing Certificateholder's or the One Stamford Forum Controlling Holder's
(if the Serviced Whole Loan is involved) response. If the Directing
Certificateholder or the One Stamford Forum Controlling Holder (if the Serviced
Whole Loan is involved) disapproves such Asset Status Report, the Special
Servicer will revise such Asset Status Report and deliver to the Directing
Certificateholder, the One Stamford Forum Controlling Holder (if the Serviced
Whole Loan is involved), the Rating Agencies, the Trustee and the Master
Servicer a new Asset Status Report as soon as practicable, but no later than 30
days after such disapproval. The Special Servicer shall revise such Asset Status
Report as described above in this Section 3.21(d) until the earlier of (x) the
delivery by the Directing Certificateholder or the One Stamford Forum
Controlling Holder (if the Serviced Whole Loan is involved), as applicable, of
an affirmative approval in writing of such revised Asset Status Report, (y) the
failure of the Directing Certificateholder or the One Stamford Forum Controlling
Holder (if the Serviced Whole Loan is involved), as applicable, to disapprove
such revised Asset Status Report in writing within ten Business Days of its
receipt thereof; or (z) the passage of 90 days from the date of preparation of
the initial version of the Asset Status Report. Following the earliest of such
events, and subject to the terms of Section 3.20, the Special Servicer shall
implement the recommended action as outlined in the most recent version of such
Asset Status Report (provided that the Special Servicer shall not take any
action that is contrary to applicable law or the terms of the applicable loan
documents or that violates the Servicing Standard or fail to take any action, if
the failure to take such action would violate the Servicing Standard). The
Special Servicer may, from time to time, modify any Asset Status Report it has
previously delivered and implement the new action in such revised report so long
as such revised report has been prepared, reviewed and either approved or not
rejected as provided above. For the avoidance of doubt, any action to be taken
(or not taken) by the Special Servicer with respect to an Asset Status Report
must be in all respects consistent with the Servicing Standard and applicable
law. The Special Servicer shall have the authority to meet with the Mortgagor
for any Specially Serviced Loan and take such actions consistent with the
Servicing Standard and the related Asset Status Report. The Special Servicer
shall not take any action inconsistent with the related Asset Status Report,
unless such action would be required to act in accordance with the Servicing
Standard.
(e) The Special Servicer or the Master Servicer, as applicable,
shall provide the Directing Certificateholder and the One Stamford Forum Note B
Holder (if the Serviced Whole Loan is involved), with not less than ten Business
Days' prior notice (except as provided in Section 3.08(a)) of any Special Action
(as described below) that the Special Servicer or the Master Servicer, as
applicable, proposes to take and, in the case of the Special Action described in
clause (vi) below, the Special Servicer shall also contemporaneously notify the
Master Servicer; provided, however, that if a shorter period of notice is
necessary to avoid the occurrence of an Adverse REMIC Event or a violation of
Section 3.21(f), then the required period of notice shall be such shorter
period.
The Directing Certificateholder (with respect to the Serviced Loans
(other than the Serviced Whole Loan) and the One Stamford Forum Controlling
Holder (with respect to the Serviced Whole Loan) shall be entitled to advise the
Special Servicer with respect to any Special Action, and notwithstanding
anything to the contrary contained herein, the Special Servicer shall not take
any Special Action or consent to the taking of any Special Action if the
Directing Certificateholder (with respect to the Serviced Loans (other than the
Serviced Whole Loan) and the One Stamford Forum Controlling Holder (with respect
to the Serviced Whole Loan), as applicable, has objected thereto by the close of
business on the tenth Business Day following its receipt of notice thereof, or
if a shorter period was necessitated in accordance with the preceding sentence,
by the close of business on the date on which such shorter period expires (it
being understood that the failure of the Directing Certificateholder or the One
Stamford Forum Controlling Holder, as applicable, to respond in the time frame
set forth in the Approval Provisions shall be deemed to constitute such party's
approval of such action); provided, however, that (x) the ability of the
Directing Certificateholder or the One Stamford Forum Controlling Holder (if the
Serviced Whole Loan is involved), as applicable, to so advise or object shall in
all events be subject to Section 3.21(f) and shall not violate the provisions of
the Mezzanine Intercreditor Agreement (with respect to any Mortgage Loan with a
related Mezzanine Loan), (y) the Master Servicer or the Special Servicer, as
applicable, shall not follow any such advice or objection that would result in a
violation of this Agreement, including Section 3.21(f), the loan documents, any
Intercreditor Agreement or applicable laws or otherwise result in an Adverse
REMIC Event or violate the provisions of the Mezzanine Intercreditor Agreement
(with respect to any Mortgage Loan with a related Mezzanine Loan) and (z) if (a)
the Directing Certificateholder or the One Stamford Forum Controlling Holder (if
the Serviced Whole Loan is involved), as applicable, (b) the Special Servicer or
Master Servicer, as applicable, together cannot agree within 10 Business Days
upon a course of action with respect to any Special Action, then the Special
Servicer or Master Servicer, as applicable, shall implement its proposed course
of action and (c) if the Master Servicer or the Special Servicer determines that
immediate action is necessary in accordance with the Servicing Standard, it may
take such action prior to the expiration of the ten Business Day period. Subject
to the foregoing, in connection with the implementation of any Special Action or
the extension of the maturity date of a Serviced Loan, the Master Servicer or
Special Servicer shall comply with the Approval Provisions, as applicable. For
purposes hereof, "Special Action" means each of the following actions:
(i) any proposed or actual foreclosure upon or comparable conversion
(which may include acquisitions of an REO Property) of the ownership of
properties securing such of the Specially Serviced Loans as come into and
continue in default;
(ii) any modification or waiver of a Loan;
(iii) any proposed or actual sale of a Defaulted Serviced Loan or
REO Property (other than in connection with the termination of the Trust
Fund or pursuant to Section 3.18);
(iv) any determination to bring an REO Property into compliance with
applicable environmental laws or to otherwise address Hazardous Materials
located at an REO Property;
(v) any acceptance of substitute or additional collateral for a Loan
unless the lender is required to accept such collateral by the underlying
loan documents and any release of the real estate collateral securing the
Loan (except as permitted by clause (ii) of Section 3.20(g));
(vi) any waiver of a "due-on-sale" clause (except as set forth in
Section 3.08(a)) or "due-on-encumbrance" clause;
(vii) any acceptance or approval of acceptance or consent to
acceptance of an assumption agreement releasing a borrower from liability
under a Serviced Loan (except as set forth in Section 3.08(a));
(viii) any acceptance of a discounted payoff of a Mortgage Loan;
(ix) any release of earnout reserve funds (other than as expressly
required, with no lender discretion and/or is automatic, under the related
loan documents);
(x) the release of any letters of credit (other than as expressly
required, with no lender discretion and/or is automatic, under the related
loan documents);
(xi) any approval of a material lease (in excess of 20% of the
leasable space) (other than as expressly required, with no lender
discretion and/or is automatic, under the related loan documents); or
(xii) any change in property manager or franchise (other than as
expressly required, with no lender discretion and/or is automatic, under
the related loan documents).
(f) Notwithstanding anything contained in this Agreement to the
contrary, (i) no objection, failure to approve or direction of the Directing
Certificateholder or the One Stamford Forum Controlling Holder (if the Serviced
Whole Loan is involved), as applicable, shall (A) require or cause the Master
Servicer or the Special Servicer, as applicable, to violate the terms of any
Loan then serviced by it, applicable law or any provision of this Agreement,
including the Master Servicer's obligation or the Special Servicer's obligation
to act in accordance with the Servicing Standard and to maintain the REMIC
status of each of REMIC I and REMIC II, or (B) result in the imposition of a
"prohibited transaction" or "prohibited contribution" tax under the REMIC
Provisions, or (C) expose the Master Servicer, the Special Servicer, the
Depositor, the Trust Fund, the Trustee or their officers, directors, employees
or agents to any claim, suit or liability, or (D) materially expand the scope of
the Special Servicer's or the Master Servicer's responsibilities under this
Agreement (the "Prohibited Actions"), and (ii) in no event shall the Master
Servicer or the Special Servicer take any action or refrain from taking any
action if the taking of such action or the refraining from taking of such action
would violate the Servicing Standard or the REMIC Provisions. The Master
Servicer or Special Servicer, as applicable, shall disregard any such direction,
failure to approve or objection.
The Directing Certificateholder shall have no liability to the
Certificateholders (other than the Holders of the Controlling Class) and the One
Stamford Forum Controlling Holder shall have no liability to the
Certificateholders (including the Holders of the Controlling Class) for any
action taken, or for refraining from the taking of any action, pursuant to this
Agreement, or for errors in judgment; provided, however, that the Directing
Certificateholder or the One Stamford Forum Controlling Holder, as applicable,
will not be protected against any liability to any Holder of the Controlling
Class that would otherwise be imposed by reason of willful misfeasance, bad
faith or negligence in the performance of duties or by reason of reckless
disregard of obligations or duties. By its acceptance of a Certificate, each
Certificateholder confirms its understanding that the Directing
Certificateholder or the One Stamford Forum Controlling Holder, as applicable,
may take actions that favor the interests of one or more Classes of the
Certificates over other Classes of the Certificates, and that the Directing
Certificateholder or the One Stamford Forum Controlling Holder, as applicable,
may have special relationships and interests that conflict with those of Holders
of some Classes of the Certificates, that the Directing Certificateholder or the
One Stamford Forum Controlling Holder, as applicable, may act solely in the
interests of the Holders of the Controlling Class, that none of the Directing
Certificateholder or the One Stamford Forum Controlling Holder, as applicable,
has any duties to the Holders of any Class of Certificates other than the
Controlling Class, that none of the Directing Certificateholder or the One
Stamford Forum Controlling Holder, as applicable, shall be deemed to have been
negligent or reckless, or to have acted in bad faith or engaged in willful
misfeasance, by reason of its having acted solely in the interests of the
Holders of the Controlling Class or the One Stamford Forum Controlling Holder,
as applicable, that none of the Directing Certificateholder or the One Stamford
Forum Controlling Holder, as applicable, shall have any liability whatsoever for
having so acted, and no Certificateholder may take any action whatsoever against
the Directing Certificateholder or the One Stamford Forum Controlling Holder, as
applicable, or any director, officer, employee, agent or principal thereof for
having so acted.
(g) With respect to the One Stamford Forum Note A Mortgage Loan,
notwithstanding anything to the contrary contained herein (but subject to
Section 3.21(f)), (i) the Special Servicer shall be required to consult with the
One Stamford Forum Controlling Holder upon the occurrence of any event of
default under such Mortgage Loan, to consider alternative actions recommended by
the One Stamford Forum Controlling Holder and to consult with the One Stamford
Forum Controlling Holder with respect to determinations made pursuant to Section
3.09 or Section 3.18 and (ii) at any time (whether or not any event of default
under such Mortgage Loan has occurred) the Master Servicer and the Special
Servicer shall be required to consult with the One Stamford Forum Controlling
Holder to the extent that the related loan documents grant the lender the right
to approve budgets for the related Mortgaged Property, prior to approving any
such budget.
(h) In connection with any proposed Special Action, the Special
Servicer shall prepare a summary of such proposed Special Action and an analysis
of whether or not such Special Action is reasonably likely to produce a greater
recovery on a present value basis than not taking such action or making such
determination and shall provide to the Directing Certificateholder or the One
Stamford Forum Controlling Holder, as applicable, such summary and such
information as is in its possession or control and is reasonably requested by
the Directing Certificateholder or the One Stamford Forum Controlling Holder, as
applicable, as may be necessary in the reasonable judgment of the Directing
Certificateholder or the One Stamford Forum Controlling Holder, as applicable,
in order to make a determination with respect to such Special Action.
The Master Servicer or Special Servicer shall provide to the One
Stamford Forum Note B Holder by hard copy or by electronic means concurrently
with the delivery thereof to the related Borrower, copies of any notice of an
event of default under the related loan documents and any other notices sent to
such Borrower with respect to foreclosure or other exercise of remedies or
enforcement, modification or waiver with respect to the related Mortgage Loan or
the related Mortgaged Property.
The Master Servicer or the Special Servicer shall also provide to
the One Stamford Forum Note B Holder by hard copy, electronic means or by other
means agreed to by the One Stamford Forum Note B Holder and the Master Servicer
or the Special Servicer (A) within 30 days of receipt thereof, copies of any
financial statements, certificates, correspondence, notices, bills or reports
with respect to the related Borrower or Mortgaged Property that were delivered
pursuant to, or to which the mortgagee or lender would be entitled to under, the
terms of the related loan documents, (B) within 30 days following the receipt
thereof by the Master Servicer or the Special Servicer monthly operating
statements and rent rolls for the related Mortgaged Property and (C) within 30
days following the receipt thereof by the Master Servicer or the Special
Servicer annual operating statements and rent rolls for the related Mortgaged
Property.
The expense of providing information (except for any notice of an
event of default) and summaries pursuant to this Section 3.21(h) shall be an
expense of the One Stamford Forum Note B Holder and shall not be an expense of
the Trust Fund.
Section 3.22 Sub-Servicing Agreements.
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(a) The Master Servicer and the Special Servicer (in the case of the
Special Servicer, with the consent of the Directing Certificateholder) may each
enter into Sub-Servicing Agreements to provide for the performance by third
parties of any or all of its obligations hereunder, provided that, in each case,
the Sub-Servicing Agreement: (i) insofar as it affects the Trust or if the
Serviced Whole Loan is involved, the One Stamford Forum Note B Holder, is
consistent with this Agreement in all material respects; (ii) expressly or
effectively provides that if the Master Servicer or Special Servicer, as the
case may be, shall for any reason no longer act in such capacity hereunder
(including, without limitation, by reason of an Event of Default), any successor
to the Master Servicer or the Special Servicer, as the case may be, hereunder
(including the Trustee if the Trustee has become such successor pursuant to
Section 7.02) may thereupon either assume all of the rights and, except to the
extent they arose prior to the date of assumption, obligations of the Master
Servicer or Special Servicer, as the case may be, under such agreement or,
except with respect to those Sub-Servicing Agreements listed on Schedule II and
subject to the provisions of Section 3.22(d), terminate such rights and
obligations; (iii) in the case of a Sub-Servicing Agreement entered into by the
Master Servicer, expressly or effectively provides that such agreement shall be
suspended with respect to any Serviced Loan serviced thereunder at the time such
Serviced Loan becomes a Specially Serviced Loan unless such Serviced Loan is
then sub-serviced by Midland Loan Services, Inc. or its permitted successors and
assigns pursuant to such Sub-Servicing Agreement (but only until such time as
such Serviced Loan becomes a Corrected Serviced Loan); (iv) in the case of a
Sub-Servicing Agreement entered into by the Special Servicer, relates only to
Specially Serviced Loans or REO Properties and expressly or effectively provides
that such agreement shall terminate with respect to any such Serviced Loan that
becomes a Corrected Serviced Loan; (v) in the case of a Sub-Servicing Agreement
entered into by the Master Servicer, provides that the related Sub-Servicer
shall comply with all reasonable requests for additional information made by the
Master Servicer (provided, however, that the related Sub-Servicer shall not be
required to furnish the same information to the Master Servicer more than once)
and, further, provides that the failure of the related Sub-Servicer to furnish
the Master Servicer on a timely basis with any required reports, statements or
other information, including without limitation, the reports referred to in
Section 3.12(a), either (A) shall permit the Master Servicer to make necessary
inquiries of the related borrower directly or (B) shall (subject to a cure
period not to exceed 60 days) constitute an event of default thereunder for
which the Master Servicer may terminate such Sub-Servicer without payment of any
termination fee (it being understood that notwithstanding anything to the
contrary in this clause (v), the obligations of a Sub-Servicer in respect of
Section 3.12(b) may be limited to the provision of reports as agreed between the
Master Servicer and such Sub-Servicer and response to reasonable inquiries from
the Master Servicer with respect thereto); (vi) subject to Section 3.08 and
Section 3.20(g), does not authorize any Sub-Servicer to approve a modification
or assumption of any Serviced Loan without the approval of the Master Servicer,
in the case of Performing Serviced Loans or of the Special Servicer, in the case
of Specially Serviced Loans or authorizes the Sub-Servicer to foreclose any
Serviced Loan without the approval of the Special Servicer; (vii) imposes no
liability whatsoever on the Trustee or the Certificateholders or in the case of
the Serviced Whole Loan, the One Stamford Forum Note B Holder, with respect to
anything contained therein (provided, that nothing herein shall preclude the
Master Servicer or the Special Servicer from seeking any indemnification that it
would be otherwise entitled to under this Agreement); (viii) provides that the
Master Servicer and the Special Servicer each shall pay the fees of any
Sub-Servicer retained by it in accordance with the respective Sub-Servicing
Agreement and, in any event, from its own funds; and (ix) contain events of
default materially similar to an Event of Default hereunder for the Master
Servicer and/or the Special Servicer, as the case may be. References in this
Agreement to actions taken or to be taken by the Master Servicer or the Special
Servicer, as the case may be, include actions taken or to be taken by a
Sub-Servicer on behalf of the Master Servicer or the Special Servicer, as the
case may be; and, in connection therewith, all amounts advanced by any
Sub-Servicer to satisfy the obligations of the Master Servicer hereunder to make
Advances shall be deemed to have been advanced by the Master Servicer out of its
own funds and, accordingly, such Advances shall be recoverable by such
Sub-Servicer in the same manner and out of the same funds as if such
Sub-Servicer were the Master Servicer, and, for so long as they are outstanding,
such Advances shall accrue interest in accordance with Section 3.11(g) and/or
Section 4.03(d), such interest to be allocable between the Master Servicer and
such Sub-Servicer as they may agree. For purposes of this Agreement, the Master
Servicer and the Special Servicer each shall be deemed to have received any
payment when a Sub-Servicer retained by it receives such payment. The Master
Servicer and the Special Servicer each shall notify the other such party, the
Trustee, in the case of the Serviced Whole Loan, the One Stamford Forum Note B
Holder, and the Depositor in writing promptly of the appointment by it of any
Sub-Servicer, and shall deliver to the Trustee copies of all Sub-Servicing
Agreements, and any amendments thereto and modifications thereof, entered into
by it promptly upon its execution and delivery of such documents.
(b) Each Sub-Servicer actually performing servicing functions (i)
shall be authorized to transact business in the state or states in which the
Mortgaged Properties for the Serviced Loans it is to service are situated, if
and to the extent required by applicable law, and (ii) to the extent
sub-servicing multifamily loans, shall be an approved conventional
seller/servicer of multifamily mortgage loans for Xxxxxxx Mac or Xxxxxx Mae or a
HUD-Approved Servicer.
(c) The Master Servicer and the Special Servicer, for the benefit of
the Trustee and the Certificateholders and, in the case of the Serviced Whole
Loan, the One Stamford Forum Note B Holders, shall (at no expense to the
Trustee, the Certificateholders or the Trust or in the case of the Serviced
Whole Loan, the One Stamford Forum Note B Holder) each monitor the performance
and enforce the obligations of its Sub-Servicers under the related Sub-Servicing
Agreements. Such enforcement, including, without limitation, the legal
prosecution of claims, termination of Sub-Servicing Agreements in accordance
with their respective terms and the terms of this Agreement, and the pursuit of
other appropriate remedies, shall be in such form and carried out to such an
extent and at such time as the Master Servicer or the Special Servicer, as the
case may be, in its reasonable business judgment, would require were it the
owner of the Serviced Loans. Promptly upon becoming aware of a default under any
Sub-Servicing Agreement to which it is a party, the Master Servicer or the
Special Servicer, as the case may be, shall notify each of the other parties
hereto, the Trustee and the One Stamford Forum Note B Holder (if the Serviced
Whole Loan is involved), and then the Trustee shall provide a copy of such
notice to the Directing Certificateholder, and, in accordance with Section
8.12(b), shall, upon request, provide a copy of such notice to each Holder of a
Non-Registered Certificate (except a Class V, Class R-I or Class R-II
Certificate) of any such default.
(d) With respect to the Sub-Servicing Agreements in effect as of the
Closing Date that are listed on Schedule II, the initial Master Servicer hereby
agrees that it shall not, in its capacity as Master Servicer, terminate any
Sub-Servicer thereunder without cause. In the event of the resignation, removal
or other termination of the initial Master Servicer (or any successor Master
Servicer) hereunder for any reason, the successor to the initial Master Servicer
(or to such successor Master Servicer) shall elect, with respect to any
Sub-Servicing Agreement existing at the time of such termination (i) to assume
the rights and obligations of the predecessor Master Servicer under such
Sub-Servicing Agreement and continue the sub-servicing arrangements thereunder
on the same terms (including without limitation the obligation to pay the same
sub-servicing fees and other compensation), (ii) to enter into a new
Sub-Servicing Agreement with such Sub-Servicer and on such terms as the new
Master Servicer and such Sub-Servicer shall mutually agree (it being understood
that such Sub-Servicer is under no obligation to accept any such new
Sub-Servicing Agreement or to enter into or continue negotiations with the new
Master Servicer) or (iii) except with respect to those Sub-Servicing Agreements
listed on Schedule II, which may only be terminated for cause, to terminate such
Sub-Servicing Agreement without cause provided that such Sub-Servicing
Agreements have events of default that are similar to the Events of Default set
forth in Section 7.01. Nothing in the foregoing provisions of this Section
3.22(d) shall limit the ability of the initial or a successor Master Servicer to
terminate a Sub-Servicer at any time for cause; provided, however, that the
parties hereto understand and agree that the refusal or failure of a
Sub-Servicer to enter into or continue negotiations with a successor Master
Servicer concerning a new Sub-Servicing Agreement shall not constitute cause for
termination. References in this Section 3.22(d) to Master Servicer, successor
Master Servicer or subsequent successor Master Servicer shall mean the Trustee,
if it is then Master Servicer, successor Master Servicer or subsequent Master
Servicer pursuant to the operation of Section 7.02.
(e) In the event the Trustee or its designee assumes the rights and
obligations of the Master Servicer or the Special Servicer under any
Sub-Servicing Agreement, the Master Servicer or the Special Servicer, as the
case may be, at its expense shall, upon request of the Trustee, deliver to the
assuming party all documents and records relating to such Sub-Servicing
Agreement and the Serviced Loans then being serviced thereunder and an
accounting of amounts collected and held on behalf of it thereunder, and
otherwise use its best efforts to effect the orderly and efficient transfer of
the Sub-Servicing Agreement to the assuming party.
(f) Notwithstanding any Sub-Servicing Agreement, the Master Servicer
and the Special Servicer shall each remain obligated and liable to the Trustee
and the Certificateholders for the performance of its obligations and duties
under this Agreement in accordance with the provisions hereof to the same extent
and under the same terms and conditions as if it alone were servicing and
administering the Serviced Loans for which it is responsible.
(g) Notwithstanding anything to the contrary set forth herein, any
account established and maintained by a Sub-Servicer pursuant to a Sub-Servicing
Agreement with the Master Servicer shall for all purposes under this Agreement
be deemed to be an account established and maintained by the Master Servicer.
(h) Each Sub-Servicer pursuant to its related Sub-Servicing
Agreement shall retain the original of any letter of credit that has been issued
in connection with any Serviced Loan that it sub-services pursuant to such
agreement on behalf of the Master Servicer for the benefit of the
Certificateholders provided that it shall provide a copy of such letter of
credit to the Master Servicer.
(i) The Master Servicer and the Special Servicer shall use
commercially reasonable efforts (including enforcement as such term is described
in Section 3.22(c)) to cause each Additional Servicer and/or Servicing Function
Participant with which it has entered into a servicing relationship with respect
to the Mortgage Loans to, forward a copy of each report or statement prepared by
such party pursuant to Section 11.09, 11.10 and/or 11.11 to the Rating Agencies
and the Directing Certificateholder.
Section 3.23 Designation of the Special Servicer by the Majority
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Certificateholder of the Controlling Class or the One Stamford Forum Controlling
--------------------------------------------------------------------------------
Holder.
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The Majority Certificateholder of the Controlling Class may at any
time and from time to time terminate (with or without cause) and replace any
existing Special Servicer or any Special Servicer that has resigned or otherwise
ceased to serve as Special Servicer (other than with respect to Serviced Whole
Loans). Such Majority Certificateholder shall so designate a Person to so serve
by the delivery to the Trustee of a written notice stating such designation. The
Trustee shall, promptly after receiving any such notice, so notify the Rating
Agencies. The designated Person shall become the Special Servicer as of the date
the Trustee shall have received: (i) written confirmation from each Rating
Agency stating that if the designated Person were to serve as Special Servicer
hereunder, none of the then current ratings assigned by such Rating Agency to
the respective Classes of the Certificates would be downgraded, qualified (if
applicable) or withdrawn as a result thereof; (ii) a written acceptance of all
obligations of the Special Servicer under this Agreement, executed by the
designated Person; and (iii) an Opinion of Counsel (at the expense of the Person
designated to become the Special Servicer) to the effect that the designation of
such Person to serve as Special Servicer is in compliance with this Section
3.23, that upon the execution and delivery of the written acceptance referred to
in the immediately preceding clause (ii), the designated Person shall be bound
by the terms of this Agreement and that this Agreement shall be enforceable
against the designated Person in accordance with its terms. The existing Special
Servicer shall be deemed to have resigned simultaneously with such designated
Person's becoming the Special Servicer hereunder; provided, however, that (i)
the terminated or resigned, as applicable, Special Servicer shall continue to be
entitled to receive all amounts accrued or owing to it under this Agreement on
or prior to the effective date of such resignation, whether in respect of
Servicing Advances or otherwise, (ii) it shall be entitled to certain Workout
Fees thereafter received to the extent permitted by Section 3.11(c), and (iii)
it and its directors, officers, employees and agents shall continue to be
entitled to the benefits of Section 6.03, notwithstanding any such termination
or resignation. Such terminated Special Servicer shall cooperate with the
Trustee and the replacement Special Servicer in effecting the termination of its
responsibilities and rights hereunder, including, without limitation, the
transfer within two Business Days to the replacement Special Servicer for
administration by it of all cash amounts that shall at the time be or should
have been credited by the terminated Special Servicer to the REO Account or
delivered to the Master Servicer or that are thereafter received by the
terminated Special Servicer with respect to Specially Serviced Loans and REO
Properties and the execution and delivery of such documents acknowledging its
termination as Special Servicer as may be required by any Rating Agency. The
Majority Certificateholder of the Controlling Class shall be responsible for
paying any costs associated with such replacement, including the reasonable
costs of any servicing transfer.
Solely with respect to the One Stamford Forum Note A Mortgage Loan,
the One Stamford Forum Controlling Holder shall be entitled to terminate the
rights and obligations of the Special Servicer under this Agreement with respect
the related Mortgage Loan, with or without cause, upon ten Business Days notice
to the Special Servicer, the Master Servicer and the Trustee, and to appoint a
successor Special Servicer; provided, however, that as evidenced in writing by
each of the Rating Agencies, the appointment of the proposed successor of the
Special Servicer will not, in and of itself, result in a downgrading, withdrawal
or qualification of the then current ratings provided by the Rating Agencies in
respect to any Class of Certificates. Except as provided in this Section
3.23(b), there shall not be more than two Special Servicers appointed under this
Agreement. No penalty or fee shall be payable to the Special Servicer with
respect to any termination pursuant to this Section 3.23(b). The One Stamford
Forum Controlling Holder shall cause the Special Servicer to be reimbursed for
the payment of any outstanding reasonable out-of-pocket costs and expenses
pursuant to the terms hereof, which costs and expenses shall not be an expense
of the Trust Fund and shall be responsible to paying any costs associated with
any such replacement of the Special Servicer, including reasonable costs of any
servicing transfer.
The successor Special Servicer shall notify the Depositor and the
Trustee of any appointment contemplated by this Section 3.23 at least two
Business Days prior to the effective date thereof and shall provide the
Depositor and the Trustee with all information reasonably requested by the
Depositor to comply with its reporting obligation under Item 6.02 of Form 8-K
not later than the effective date of such appointment.
The terminated Special Servicer (i) shall continue to be entitled to
receive all amounts accrued or owing to it under this Agreement on or prior to
the effective date of such termination, whether in respect of Servicing Advances
or otherwise, (ii) it shall be entitled to certain Workout Fees thereafter
received to the extent permitted by Section 3.11(c), and (iii) it and its
directors, officers, employees and agents shall continue to be entitled to the
benefits of Section 6.03, notwithstanding any such termination. Such terminated
Special Servicer shall cooperate with the Trustee and the replacement Special
Servicer in effecting the termination of its responsibilities and rights
hereunder, including, without limitation, the transfer within two Business Days
to the replacement Special Servicer for administration by it of all cash amounts
that shall at the time be or should have been credited by the terminated Special
Servicer to the REO Account or delivered to the Master Servicer or that are
thereafter received by the terminated Special Servicer with respect to Specially
Serviced Loans and REO Properties and the execution and delivery of such
documents acknowledging its termination as Special Servicer as may be required
by any Rating Agency.
Section 3.24 Confidentiality.
----------------
Notwithstanding any terms to the contrary in Section 3.19(a), the
Master Servicer and the Special Servicer will use reasonable efforts to keep
confidential and not disclose to any Person other than each other, the
Depositor, the Trustee, a Controlling Class Certificateholder, the Sub-Servicer
(with respect to any Serviced Loans it is sub-servicing), a Borrower (with
respect to the related Serviced Loan), any Certificateholder, the One Stamford
Forum Note B Holder and the Rating Agencies, any information that it obtains in
its capacity as Master Servicer or Special Servicer with respect to the Serviced
Loans or any related Mortgagor including, without limitation, credit information
with respect to any such Mortgagor (collectively, "Confidential Information"),
except (i) any officers, directors and employees of the Master Servicer or
Special Servicer (or any officers, directors and employees of any Affiliates of
the Master Servicer or Special Servicer); (ii) auditors of the Master Servicer
or the Special Servicer and any agents, financial or tax advisors, attorneys,
accountants and professional consultants retained by the Master Servicer or the
Special Servicer in connection with the transactions contemplated by this
Agreement that have been informed of the confidential nature of the information
provided to them; (iii) the Mortgage Loan Seller with respect to information
relating to the Loans transferred into the Trust by the Mortgage Loan Seller;
(iv) a potential purchaser of servicing rights hereunder that has agreed to keep
such information confidential; (v) to the extent the Master Servicer or Special
Servicer deems such disclosure to be reasonably necessary in carrying out its
duties pursuant to this Agreement or any Sub-Servicing Agreement; (vi) to the
extent such information is publicly available or otherwise available from
sources unrelated to this transaction; (vii) to the extent such disclosure is
required by law or court order or is demanded pursuant to a subpoena; (viii) to
the extent such information is required to be delivered to third parties
(including, without limitation, property inspectors, tax service companies,
insurance carriers, and data systems vendors) in connection with the performance
of the Master Servicer's or the Special Servicer's obligations hereunder; or
(ix) to the extent the Depositor consents in writing to such disclosure. For
purposes of this paragraph, the terms "Master Servicer" and "Special Servicer"
shall mean the divisions or departments of such corporate entities involved in
providing services hereunder and their respective officers, directors and
employees. Notwithstanding anything in this Section 3.24 to the contrary, the
Master Servicer, and any Sub-Servicer with the prior written permission of the
Master Servicer, may disseminate pool-wide and general statistical information
relating to the Loans and the Loan portfolio being serviced (as to any
Sub-Servicer, limited to its own sub-serviced portfolio), so long as no
Mortgagors are identified.
Section 3.25 No Solicitation of Prepayments.
-------------------------------
Neither the Master Servicer nor the Special Servicer shall solicit
or permit any Affiliate to solicit, either directly or indirectly, prepayments
from any Mortgagors under the Loans; provided, however, that the foregoing
restriction shall not be interpreted to prohibit such solicitation by a division
or department of, or an Affiliate of, the Master Servicer or the Special
Servicer, or otherwise by a division or department of, or an Affiliate of, the
Master Servicer or the Special Servicer if such solicitation occurs incidentally
in the normal course of business and such solicitation is not conducted, in
whole or in part, (i) by an individual engaged at any time in activities
relating to the servicing of Loans or (ii) based upon or otherwise with the
benefit of information or documentation relating to the Certificates obtained by
or through the business unit within the Master Servicer or Special Servicer
responsible for servicing the Loans, including without limitation any listing of
the Loans or related Mortgagors or Mortgaged Properties. Each Sub-Servicing
Agreement shall contain a provision identical to the foregoing with respect to
the related Sub-Servicer.
Section 3.26 Certain Matters with Respect to Mortgage Loans
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Permitting Defeasance, Franchise Mortgage Loans and Certain Mortgage Loans
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Permitting Additional Debt.
---------------------------
(a) With respect to each Mortgage Loan as to which the Master
Servicer shall have the discretion pursuant to the terms thereof to require the
related Mortgagor to post defeasance collateral consisting of U.S. government
securities, within the meaning of Treasury Regulations Section
1.860G-2(a)(8)(i), in an amount sufficient to make all scheduled payments under
the Mortgage Note when due in lieu of making a permitted prepayment, the Master
Servicer shall so require defeasance, provided the Master Servicer has received
an Opinion of Counsel that such defeasance complies with Treasury Regulations
Section 1.860G-2(a)(8). The Master Servicer may accept as defeasance collateral
any "government security," within the meaning of Treasury Regulations Section
1.860G-(2)(a)(8)(i), notwithstanding any more restrictive requirements in the
Mortgage.
(b) The Master Servicer shall require, as a condition to the
exercise by the Mortgagor of any defeasance rights, that the Mortgagor pay any
costs and expenses associated with such exercise.
(c) To the extent that the terms of a Mortgage permit defeasance,
the Master Servicer shall require the related Mortgagor to deliver a
certification from the Mortgagor's independent certified public accountants as
to the sufficiency of the related U.S. government securities, and provide a copy
of such certification to each Rating Agency and the Directing Certificateholder.
(d) To the extent that the terms of a Mortgage permit defeasance,
the Master Servicer shall not approve the form and substance of any required
legal documents in connection with such defeasance unless (i) to the extent that
the outstanding principal balance of a Mortgage Loan is $20,000,000 or more, or
constitutes 5% or more of the then current principal balance of the Mortgage
Pool or such Mortgage Loan comprises at the time one of the ten largest Mortgage
Loans (by outstanding principal balance) in the Mortgage Pool, Fitch and S&P
each shall have confirmed to it in writing that such defeasance will not result
in the withdrawal, downgrade or qualification (if applicable) of the rating of
any Class of Certificates, (ii) it shall have obtained an Opinion of Counsel
that the defeasance complies with applicable REMIC Provisions; and, (iii) it
shall have obtained an accountant's certification that the defeasance collateral
is sufficient to make payments under the related Mortgage Loan for the remainder
of its term. In the case of the defeasance of any Mortgage Loan that does not
require a Rating Agency confirmation pursuant to the immediately preceding
clause (i), the Master Servicer must provide to S&P after completion of the
defeasance a certification substantially in the form of Exhibit J hereto.
(e) With respect to each Mortgage Loan that provides for defeasance,
to the extent permitted by the terms of such Mortgage Loan, or if so requested
by the Rating Agencies, the Master Servicer shall use its best efforts to have
the related Mortgagor (i) designate a Single-Purpose-Entity (if the borrower no
longer complies) to assume the Mortgage Loan and own the collateral and (ii)
provide an opinion from counsel that the Trustee has a perfected security
interest in the new collateral.
(f) To the extent that (i) the outstanding principal balance of a
Mortgage Loan is $20,000,000 or more or constitutes 2% or more of the then
current principal balance of the Mortgage Pool, and (ii) the terms of the
related loan documents require the consent of the lender in order for the
related Mortgagor to change the manager of the related Mortgaged Property, the
Master Servicer shall not so consent to such a change in management unless it
has received (a) the prior consent of the Special Servicer, which will be deemed
given if such party has not responded within ten Business Days (as such period
may be extended herein if the consent of the Directing Certificateholder or the
One Stamford Forum Controlling Holder (if the Serviced Whole Loan is involved)
is required hereunder) following delivery of request for consent together with
any information reasonably necessary to make a decision and (b) a written
confirmation from each Rating Agency such a change in management, if effected,
would not result in the withdrawal, downgrade or qualification (if applicable)
of the rating of any Class of Certificates.
(g) Notwithstanding anything contained in this Section 3.26 the
Master Servicer will disregard any objection of the Directing Certificateholder
or the One Stamford Forum Controlling Holder (if the Serviced Whole Loan is
involved), as applicable, that would result in a Prohibited Action.
Section 3.27 Application of Default Charges.
-------------------------------
(a) Subject to the terms of any applicable Intercreditor Agreement,
any and all Default Charges that are actually received by or on behalf of the
Trust with respect to the Mortgage Pool, shall be applied for the following
purposes and in the following order, in each case to the extent of the remaining
portion of such Default Charges:
first, to pay to the Trustee, the Master Servicer or the Special
Servicer, in that order, any Advance Interest due and owing to such party
on outstanding Advances made thereby with respect to any Mortgage Loan or
REO Serviced Loan in the Mortgage Pool;
second, to reimburse the Trust for any Advance Interest paid to the
Trustee, the Master Servicer or the Special Servicer since the Closing
Date with respect to any Mortgage Loan or REO Serviced Loan in the
Mortgage Pool during the 12-month period preceding the receipt of such
Default Charges, which Advance Interest was paid from a source other than
Default Charges received on the Mortgage Pool (provided, however, if the
Special Servicer is able to determine that such Default Charges are
related to any Specially Serviced Loan or REO Serviced Loan in respect of
which Advance Interest was paid to the Trustee, the Master Servicer or the
Special Servicer prior to such 12-month period from a source other than
Default Charges received on the Mortgage Pool, then the Master Servicer
shall conclusively rely on such determination and shall apply such Default
Charges to reimburse the Trust for such Advance Interest);
third, to pay the Special Servicer for any Servicing Advances made
for the cost of an inspection made on a Specially Serviced Loan;
fourth, to reimburse the Trust for any other Additional Trust Fund
Expenses incurred with respect to any Mortgage Loan or REO Serviced Loan
in the Mortgage Pool during the 12-month period prior to the receipt of
such Default Charges, which Additional Trust Fund Expenses were previously
paid from a source other than Default Charges received on the Mortgage
Pool (provided, however, if the Special Servicer is able to determine that
such Default Charges are related to any Specially Serviced Loan or REO
Serviced Loan in respect of which any Additional Trust Fund Expense was
paid to the Trustee prior to such 12-month period from a source other than
Default Charges received on the Mortgage Pool, then the Master Servicer
shall conclusively rely on such determination and shall apply such Default
Charges to reimburse the Trust for such Additional Trust Fund Expense);
fifth, to pay the Master Servicer for Servicing Advances made for
the cost of an inspection made on a Loan other than a Specially Serviced
Loan; and
sixth, to pay any remaining portion of such Default Charges as
Additional Master Servicing Compensation to the Master Servicer, if such
Default Charges were collected with respect to a Performing Serviced Loan,
and otherwise to pay any remaining portion of such Default Charges as
Additional Special Servicing Compensation to the Special Servicer.
(b) Default Charges applied to reimburse the Trust pursuant to
either clause second or clause fourth of Section 3.27(a) is intended to be
available for distribution on the Certificates pursuant to Section 4.01(b),
subject to application pursuant to Section 3.05(a), Section 3.05(b), Section
3.05(c) or Section 3.05(f) for any items payable out of general collections on
the Mortgage Pool. Default Charges applied to reimburse the Trust pursuant to
either clause second or clause fourth of Section 3.27(a) shall be deemed to
offset payments of Advance Interest or other Additional Trust Fund Expenses
(depending on which clause is applicable) in the chronological order in which
they were made or incurred (whereupon such Advance Interest or other Additional
Trust Fund Expenses (depending on which clause is applicable) shall thereafter
be deemed to have been paid out of Default Charges).
(c) Any and all Default Charges that are actually collected with
respect to the One Stamford Forum Note B or any successor REO Serviced Loan with
respect thereto during any Collection Period (as allocable thereto pursuant to
the related loan agreement), shall be applied for the following purposes and in
the following order, in each case to the extent of the remaining portion of such
Default Charges and net of any portion of such Default Charges, if any, that are
required to be paid to the One Stamford Forum Note B Holder under any
Intercreditor Agreement and/or this Agreement:
first, to pay to the Trustee, the Master Servicer or the Special
Servicer, in that order, any interest due and owing to such party on any
outstanding Advances made thereby, with respect to any Serviced Loan or REO
Serviced Loan in such Whole Loan or the related REO Mortgaged Property and
reimbursed in the related Collection Period (to be applied with respect to any
particular party in such manner that the interest that accrued first and has
been outstanding the longest shall be paid first); and
second, to pay any remaining portion of such Default Charges as
Additional Master Servicing Compensation to the Master Servicer, to the extent
received, if they were accrued with respect to the One Stamford Forum Note B
during a period that it was a Performing Serviced Loan, or as Additional Special
Servicing Compensation to the Special Servicer, to the extent received, if they
were accrued with respect to the One Stamford Forum Note B during a period that
it was a Specially Serviced Loan or an REO Serviced Loan, in each case pursuant
to Section 3.11.
Section 3.28 Matters Regarding the Whole Loans.
----------------------------------
(a) The One Stamford Forum Note B Holder will not have any liability
to the Trust or the Certificateholders for any action taken, or for refraining
from the taking of any action, in good faith pursuant to this Agreement, or for
errors in judgment; provided, however, that the One Stamford Forum Note B Holder
will not be protected against any liability which would otherwise be imposed by
reason of willful misfeasance, bad faith or negligence in the performance of
duties or by reason of negligent disregard of duties.
(b) The One Stamford Forum Note B Holder shall be entitled to
receive, upon request, a copy of any notice or report required to be delivered
(upon request or otherwise) to the Trustee with respect to the related Whole
Loan or any related REO Property by any other party hereto. Any such other party
shall be permitted to require payment of a sum sufficient to cover the
reasonable costs and expenses of providing such copies.
(c) If, pursuant to Section 2.03, Section 3.18 and Section 9.01, the
Mortgage Loan included in the Serviced Whole Loan is purchased or repurchased
from the Trust Fund, the purchaser thereof shall be bound by the terms of the
related Intercreditor Agreement and shall assume the rights and obligations of
the holder of the related Note under the related Intercreditor Agreement. All
portions of the related Mortgage File and other documents pertaining to such
Mortgage Loan shall be endorsed or assigned to the extent necessary or
appropriate to the purchaser of such Mortgage Loan in its capacity as the holder
of the related Note (as a result of such purchase or repurchase), under the
related Intercreditor Agreement in the manner contemplated under such agreement,
which such purchaser shall be deemed to acknowledge. Thereafter, such Mortgage
File shall be held by such purchaser or a custodian appointed thereby for the
benefit of such purchaser, and the other Lenders, as their interests appear
under the related Intercreditor Agreement. If the related Servicing File is not
already in the possession of such party, it shall be delivered to the master
servicer or special servicer, as the case may be, under the separate servicing
agreement for the Serviced Whole Loan.
Section 3.29 Certain Powers of the One Stamford Forum Controlling
----------------------------------------------------
Holder and Certain Intercreditor Matters.
-----------------------------------------
(a) The One Stamford Forum Controlling Holder shall not owe any
fiduciary duty to the Trustee, the Master Servicer, the Special Servicer or any
Certificateholder. The One Stamford Forum Controlling Holder will not have any
liability to the Certificateholders for any action taken, or for refraining from
the taking of any action or the giving or withholding of any consent, pursuant
to this Agreement, or for errors in judgment. By its acceptance of a
Certificate, each Certificateholder confirms its understanding that the One
Stamford Forum Controlling Holder may take or refrain from taking actions that
favor the interests of one or more Classes of the Certificates over other
Classes of the Certificates, and that the One Stamford Forum Controlling Holder
may have special relationships and interests that conflict with those of Holders
of some Classes of the Certificates, that the One Stamford Forum Controlling
Holder does not have any duties to the Holders of any Class of Certificates, and
that the One Stamford Forum Controlling Holder shall have no liability
whatsoever for having so acted, and no Certificateholder may take any action
whatsoever against the One Stamford Forum Controlling Holder or any director,
officer, employee, agent or principal thereof for having so acted.
(b) Notwithstanding anything in this Agreement to the contrary, with
respect to each Serviced Whole Loan, the One Stamford Forum Controlling Holder,
in lieu of the Directing Certificateholder, shall be entitled to exercise all
rights of the Directing Certificateholder under this Agreement with respect to
the Serviced Whole Loan, as applicable, and any references to the Directing
Certificateholder in this Agreement relating to actions permitted to be taken
only with the consent of the Directing Certificateholder with respect to the
Serviced Whole Loan shall be deemed to be references to the One Stamford Forum
Controlling Holder; provided, however, that (i) the Directing Certificateholder
shall also have the right to receive all reports and notices under this
Agreement (which shall not be an expense of the One Stamford Forum Controlling
Holder), (ii) the Directing Certificateholder shall also have the right to
consult with the Special Servicer (on a non-binding basis) regarding the
Serviced Whole Loan, (iii) the Directing Certificateholder (and not the One
Stamford Forum Controlling Holder) shall be entitled to exercise the Purchase
Option set forth in Section 3.18(c) with respect to the Serviced Whole Loan and
(iv) the One Stamford Forum Controlling Holder shall not be entitled to
terminate the Special Servicer. In addition, the One Stamford Forum Controlling
Holder shall have any rights, whether or not additional, that are specified in
the related Intercreditor Agreement.
In addition, if a Control Appraisal Period exists with respect to
the Serviced Whole Loan, then the One Stamford Forum Controlling Holder shall
not be authorized to exercise any of its approval and consent rights and powers
provided for in Section 3.23, this Section 3.29 or elsewhere in this Agreement
or the related Intercreditor Agreement with respect to the Serviced Whole Loan
and the Directing Certificateholder shall be entitled to exercise all such
rights and powers, subject to the provisions of the related Intercreditor
Agreement; provided, however, that the One Stamford Forum Controlling Holder
shall nevertheless retain the right to receive distributions, notices and
reports under this Agreement.
(c) Within five Business Days of receipt of written notice that a
new the One Stamford Forum Controlling Holder has been selected, the Trustee
shall deliver notice to the Master Servicer and the Special Servicer, of such
the One Stamford Forum Controlling Holder's identity.
(d) With respect to each Serviced Whole Loan, notwithstanding
anything to the contrary contained herein, the One Stamford Forum Controlling
Holder shall have the right to cure monetary and non-monetary defaults by the
related Borrower as provided in the related Intercreditor Agreement.
Section 3.30 Litigation Control.
-------------------
The Special Servicer, with respect to litigation involving Specially
Serviced Loans, and the Master Servicer, with respect to litigation involving
Performing Serviced Loans, and where the applicable servicer contemplates
availing itself or the Trustee on behalf of the Trust Fund of indemnification as
provided for under this Agreement, such servicer shall, for the benefit of the
Certificateholders, direct, manage, prosecute, defend and/or settle any and all
claims and litigation ("Litigation Control") relating to (a) the enforcement of
the obligations of a Borrower under the related loan documents and (b) any
action brought against the Trust Fund or any party to this Agreement with
respect to any Mortgage Loan. Such Litigation Control shall be carried out in
accordance with the terms of this Agreement, including, without limitation, the
Servicing Standard. Upon becoming aware of or being named in any such claims or
litigation, the Master Servicer shall immediately notify the Directing
Certificateholder and the Trustee of such claims or litigation. In addition, the
Master Servicer shall prepare and submit a monthly status report regarding any
Litigation Control matter to the Directing Certificateholder.
Notwithstanding the foregoing, each of the Special Servicer and the
Master Servicer, as applicable, shall consult with and keep the Directing
Certificateholder and the Trustee advised of any material development including
without limitation (i) any material decision concerning Litigation Control and
the implementation thereof and (ii) any decision to agree to or propose any
terms of settlement, and shall submit any such development or decision to the
Directing Certificateholder for its approval or consent. Subject to the second
to last paragraph of this Section 3.30, the Special Servicer or the Master
Servicer shall not take any action implementing any such material development or
decision described in the preceding sentence unless and until it has notified in
writing the Directing Certificateholder and the Directing Certificateholder has
not objected in writing within five Business Days of having been notified
thereof and having been provided with all information that the Directing
Certificateholder has reasonably requested with respect thereto promptly
following its receipt of the subject notice (it being understood and agreed that
if such written objection has not been received by the Special Servicer or the
Master Servicer, as applicable, within such five-Business Day period, then the
Directing Certificateholder shall be deemed to have approved the taking of such
action); provided that, in the event that the Special Servicer or the Master
Servicer, as applicable, determines that immediate action is necessary to
protect the interests of the Certificateholders (as a collective whole), the
Special Servicer or the Master Servicer, as applicable, may take such action
without waiting for the response of the Directing Certificateholder; provided
that the Special Servicer or the Master Servicer, as applicable, has reasonably
determined that the Directing Certificateholder has received notice of such
action in writing.
With respect to any Litigation Control otherwise required to be
exercised hereunder by the Master Servicer relating to a Mortgage Loan that has
either: (i) been satisfied or paid in full or (ii) as to which a Final Recovery
Determination has been made, after receiving the required notice from the Master
Servicer set forth above that it became aware of or was named in any such claims
or litigation, the Directing Certificateholder may direct in writing that the
such Litigation Control nevertheless be exercised by the Special Servicer;
provided that: (a) the Special Servicer has determined, consistent with the
Servicing Standard, that its actions with respect to such obligations (including
without limitation settlements) (i) would be in the best interests of the
Certificateholders and, in the case of the One Stamford Forum Whole Loan, the
One Stamford Forum Note B Holder (as a collective whole), (ii) do not require
any admission of liability or wrongdoing on the part of the Master Servicer and
(iii) are fully indemnifiable (including without limitation on behalf of the
Master Servicer) under Section 6.03 and payable by the Trust; (b) all costs and
fees incurred in defending and settling the claims (including without limitation
on behalf of the Master Servicer) are indemnified expenses under Section 6.03;
and (c) with respect to a settlement, the Special Servicer has reasonably
consulted with the Master Servicer prior to such settlement.
Notwithstanding the foregoing, no advice, direction or objection of
the Directing Certificateholder shall (i) require or cause the Special Servicer
or the Master Servicer, as applicable, to violate the terms of any Mortgage Loan
or any related intercreditor, co-lender or similar agreement, applicable law or
any provision of this Agreement, including the Special Servicer's and the Master
Servicer's obligation to act in accordance with the Servicing Standard and to
maintain the REMIC status of each of REMIC I and REMIC II, (ii) result in an
Adverse REMIC Event with respect to either of REMIC I or REMIC II or an Adverse
Grantor Trust Event with respect to the Grantor Trust, (iii) expose the Master
Servicer, the Special Servicer, the Depositor, the Mortgage Loan Seller, the
Trust Fund, the Trustee or their Affiliates, officers, directors, shareholders,
partners, members, managers, employees or agents to any claim, suit, or
liability for which this Agreement does not provide indemnification to such
party or expose any such party to prosecution for a criminal offense, or (iv)
materially expand the scope of the Special Servicer's or the Master Servicer's
responsibilities under this Agreement; and neither the Special Servicer nor the
Master Servicer will follow any such advice, direction or objection if given by
the Directing Certificateholder or initiate any such actions.
Notwithstanding the foregoing, (i) in the event that any action,
suit, litigation or proceeding names the Trustee in its individual capacity, or
in the event that any judgment is rendered against the Trustee in its individual
capacity, the Trustee, upon prior written notice to the Master Servicer or the
Special Servicer, as applicable, may retain counsel and appear in any such
proceeding on its own behalf in order to protect and represent its interests
(but not to otherwise direct, manage or prosecute such litigation or claim),
(ii) in the event of any action, suit, litigation or proceeding, other than an
action, suit, litigation or proceeding relating to the enforcement of the
obligations of a Mortgagor under the related loan documents or otherwise
relating to a Mortgage Loan or Mortgaged Property, neither the Master Servicer
nor the Special Servicer shall, without the prior written consent of the
Trustee, (A) initiate any action, suit, litigation or proceeding in the name of
the Trustee, whether in such capacity or individually, (B) engage counsel to
represent the Trustee, or (C) prepare, execute or deliver any government
filings, forms, permits, registrations or other documents or take any other
similar action with the intent to cause, and that actually causes, the Trustee
to be registered to do business in any state, and (iii) in the event that any
court finds that the Trustee is a necessary party in respect of any action,
suit, litigation or proceeding relating to or arising from this Agreement or any
Mortgage Loan, the Trustee shall have the right to retain counsel and appear in
any such proceeding on its own behalf in order to protect and represent its
interest (but not to otherwise direct, manage or prosecute such litigation or
claim).
Section 3.31 Matters Relating to Certain Mortgage Loans.
-------------------------------------------
With respect to the Mortgage Loan identified as Loan No. 16340 in
the Mortgage Loan Schedule and referred to as "Columbia Bank Building (WA)", the
Master Servicer shall not permit the termination of the "Parking Easement"
unless a Rating Agency Confirmation is obtained. The Master Servicer shall
provide prompt notice to the Mortgage Loan Seller upon the request for the
termination of the "Parking Easement". The cost of such Rating Agency
Confirmation, if not paid for by the related Borrower, shall be paid by the
Mortgage Loan Seller.
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS AND RELATED MATTERS
Section 4.01 Distributions.
--------------
(a) (i) On each Distribution Date amounts held in the REMIC I
Distribution Account shall be withdrawn or deemed to be withdrawn (to the extent
of the Available Distribution Amount, the "REMIC I Distribution Amount") in the
case of all Classes of REMIC I Regular Interests and distributed or deemed to be
distributed on the REMIC I Regular Interests as set forth in Section 4.01(a)(ii)
and distributed on the Class R-I Certificates as set forth in Section
4.01(a)(iii). Thereafter, until distributed to the Certificateholders, such
amounts shall be considered to be held in the REMIC II Distribution Account.
(ii) Principal and interest amounts, reimbursement of Realized
Losses and Additional Trust Fund Expenses and timing of distributions on
each REMIC I Regular Interest will be identical to such amounts,
reimbursements and timing on the related Corresponding Certificates;
except that, solely for this purpose, all calculations of interest with
respect to the Corresponding REMIC I Regular Interests shall be made as
though the Class A-1, Class A-2, Class A-3, Class A-4, Class A-1A, Class
A-M, Class A-J, Class B, Class C, Class D, Class E, Class F, Class G,
Class H, Class J, Class K, Class L, Class M, Class N, Class O and Class P
Certificate Pass-Through Rates were equal to the Weighted Average Adjusted
Net Mortgage Rate and as though the Class XW Notional Amount were zero at
all times and such that the amounts and timing of interest distributions
on each Corresponding REMIC I Regular Interest represent the aggregate of
the corresponding amounts on each Class of Corresponding Certificates and
its related Component of the Class XW Certificates; provided that (A)
interest shall be deemed distributed on such REMIC I Regular Interest only
in the same priority and to the extent actually distributable on such
related Class of Corresponding Certificates or related Component and (B)
interest distributable on the Class XW Certificates shall be distributable
pro rata among the related Components.
(iii) Any amount that remains in the REMIC I Distribution Account on
each Distribution Date after distribution of the REMIC I Distribution
Amount and Prepayment Premiums allocable to the REMIC I Regular Interests
pursuant to Section 4.01(c)(iv) shall be distributed to the Holders of the
Class R-I Certificates (but only to the extent of the Available
Distribution Amount for such Distribution Date remaining in the REMIC I
Distribution Account, if any).
(b) On each Distribution Date, to the extent of the Available
Distribution Amount for such Distribution Date, the Trustee shall transfer or be
deemed to transfer the REMIC I Distribution Amount from the REMIC I Distribution
Account to the REMIC II Distribution Account in the amounts set forth in Section
4.01(a)(ii) with respect to each Class of REMIC I Regular Interest, and
immediately thereafter, shall make distributions thereof from the REMIC II
Distribution Account to the REMIC II Regular Certificates in the order of
priority set forth in clauses (i) through (li) below, satisfying in full, to the
extent required and possible, each priority before making any distribution with
respect to any succeeding priority.
(i) concurrently, (a) from the Loan Group 1 Available Distribution
Amount, to distributions of interest to the Holders of the Class A-1,
Class A-2, Class A-3 and Class A-4 Certificates, pro rata as among such
Classes in accordance with, all Distributable Certificate Interest in
respect of each such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates, if
any; (b) from the Loan Group 2 Available Distribution Amount,
distributions of interest to the Holders of the Class A-1A Certificates,
up to an amount equal to all Distributable Certificate Interest in respect
of such Class of Certificates for such Distribution Date and, to the
extent not previously paid, for all prior distribution dates, if any; and
(c) from the Loan Group 1 Available Distribution Amount and/or the Loan
Group 2 Available Distribution Amount, distributions of interest to the
Holders of the Class XW Certificates, up to an amount equal to all
Distributable Certificate Interest in respect of such Class of
Certificates for such Distribution Date and, to the extent not previously
paid, for all prior Distribution Dates, if any; provided, however, that if
the Loan Group 1 Available Distribution Amount and/or the Loan Group 2
Available Distribution Amount is insufficient to pay in full the total
amount of Distributable Certificate Interest, as provided above, payable
in respect of any Class of Senior Certificates on such Distribution Date,
then the entire Available Distribution Amount shall be applied to make
distributions of interest to the Holders of the Class A-1, Class X-0,
Xxxxx X-0, Class A-4, Class A-1A and Class XW Certificates without regard
to Loan Group, up to an amount equal to, and pro rata as among such
Classes in accordance with, all Distributable Certificate Interest in
respect of each such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates, if
any;
(ii) to distributions of principal to the Holders of the Class A-1,
Class A-2, Class A-3, Class A-4 and Class A-1A Certificates in reduction
of the Class Principal Balances thereof concurrently (A)(1) first, to the
Holders of the Class A-1 Certificates, in an amount up to the Loan Group 1
Principal Distribution Amount and, after the outstanding Class Principal
Balance of the Class A-1A Certificates has been reduced to zero, the Loan
Group 2 Principal Distribution Amount remaining after payments to Holders
of the Class A-1A Certificates have been made on such Distribution Date,
until the outstanding Class Principal Balance of the Class A-1
Certificates has been reduced to zero; (3) second, to the Holders of the
Class A-2 Certificates, in an amount up to the Loan Group 1 Principal
Distribution Amount and, after the outstanding Class Principal Balance of
the Class A-1A Certificates has been reduced to zero, the Loan Group 2
Principal Distribution Amount remaining after payments to Holders of the
Class A-1A Certificates and the Class A-1 Certificates have been made on
such Distribution Date, until the outstanding Class Principal Balance of
the Class A-2 Certificates has been reduced to zero; (4) third, to the
Holders of the Class A-3 Certificates, in an amount up to the Loan Group 1
Principal Distribution Amount and, after the outstanding Class Principal
Balance of the Class A-1A Certificates has been reduced to zero, the Loan
Group 2 Principal Distribution Amount remaining after payments to Holders
of the Class A-1A Certificates and the Class A-1 and Class A-2
Certificates have been made on such Distribution Date, until the
outstanding Class Principal Balance of the Class A-3 Certificates has been
reduced to zero; (5) fourth, to the Holders of the Class A-4 Certificates,
in an amount up to the Loan Group 1 Principal Distribution Amount and,
after the outstanding Class Principal Balance of the Class A-1A
Certificates has been reduced to zero, the Loan Group 2 Principal
Distribution Amount remaining after payments to Holders of the Class A-1A,
Class A-1, Class A-2 and Class A-3 Certificates have been made on such
Distribution Date, until the Class Principal Balance of the Class A-4
Certificates has been reduced to zero; and (B) to the Holders of the Class
A-1A Certificates, in an amount up to the Loan Group 2 Principal
Distribution Amount and, after the outstanding Class Principal Balance of
the Class A-1, Class A-2, Class A-3 and Class 4 Certificates have been
reduced to zero, the Loan Group 1 Principal Distribution Amount remaining
after payments to Holders of the Class A-1A, Class A-1, Class A-2, Class
A-3 and Class A-4 Certificates have been made on such Distribution Date,
until the Class Principal Balance of the Class A-1A Certificates has been
reduced to zero;
(iii) to reimburse the Holders of the Class A-1, Class A-2, Class
A-3, Class A-4 and the Class A-1A Certificates, up to an amount equal to,
and pro rata as among such Classes in accordance with, the respective
amounts of Realized Losses and Additional Trust Fund Expenses, if any,
previously allocated to the Class Principal Balance of such Classes and
for which no reimbursement has previously been paid;
(iv) to distributions of interest to the Holders of the Class A-M
Certificates in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(v) if the Class Principal Balances of the Class A-1, Class A-2,
Class A-3, Class A-4 and Class A-1A Certificates have been reduced to
zero, to distributions of principal to the Holders of the Class A-M
Certificates, in an amount (not to exceed the Class Principal Balance of
the Class A-M Certificates outstanding immediately prior to such
Distribution Date) equal to the entire remaining Principal Distribution
Amount for such Distribution Date;
(vi) to distributions to the Holders of the Class A-M Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated to
the Class Principal Balance of the Class A-M Certificates and that remain
unreimbursed immediately prior to such Distribution Date;
(vii) to distributions of interest to the Holders of the Class A-J
Certificates in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(viii) if the Class Principal Balances of the Class A-1, Class X-0,
Xxxxx X-0, Class A-4, Class A-1A and Class A-M Certificates have been
reduced to zero, to distributions of principal to the Holders of the Class
A-J Certificates, in an amount (not to exceed the Class Principal Balance
of the Class A-J Certificates outstanding immediately prior to such
Distribution Date) equal to the entire remaining Principal Distribution
Amount for such Distribution Date;
(ix) to distributions to the Holders of the Class A-J Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated to
the Class Principal Balance of the Class A-J Certificates and that remain
unreimbursed immediately prior to such Distribution Date;
(x) to distributions of interest to the Holders of the Class B
Certificates in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(xi) if the Class Principal Balances of the Class A-1, Class A-2,
Class A-3, Class A-4, Class A-1A, Class A-M and Class A-J Certificates
have been reduced to zero, to distributions of principal to the Holders of
the Class B Certificates, in an amount (not to exceed the Class Principal
Balance of the Class B Certificates outstanding immediately prior to such
Distribution Date) equal to the entire remaining Principal Distribution
Amount for such Distribution Date;
(xii) to distributions to the Holders of the Class B Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated to
the Class Principal Balance of the Class B Certificates and that remain
unreimbursed immediately prior to such Distribution Date;
(xiii) to distributions of interest to the Holders of the Class C
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(xiv) if the Class Principal Balances of the Class A-1, Class A-2,
Class A-3, Class A-4, Class A-1A, Class A-M, Class A-J and Class B
Certificates have been reduced to zero, to distributions of principal to
the Holders of the Class C Certificates, in an amount (not to exceed the
Class Principal Balance of the Class C Certificates outstanding
immediately prior to such Distribution Date) equal to the entire remaining
Principal Distribution Amount for such Distribution Date;
(xv) to distributions to the Holders of the Class C Certificates, in
an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated to
the Class Principal Balance of the Class C Certificates and that remain
unreimbursed immediately prior to such Distribution Date;
(xvi) to distributions of interest to the Holders of the Class D
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(xvii) if the Class Principal Balances of the Class A-1, Class A-2,
Class A-3, Class A-4, Class A-1A, Class A-M, Class A-J, Class B and Class
C Certificates have been reduced to zero, to distributions of principal to
the Holders of the Class D Certificates, in an amount (not to exceed the
Class Principal Balance of the Class D Certificates outstanding
immediately prior to such Distribution Date) equal to the entire remaining
Principal Distribution Amount for such Distribution Date;
(xviii) to distributions to the Holders of the Class D Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated to
the Class Principal Balance of the Class D Certificates and that remain
unreimbursed immediately prior to such Distribution Date;
(xix) to distributions of interest to the Holders of the Class E
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(xx) if the Class Principal Balances of the Class A-1, Class A-2,
Class A-3, Class A-4, Class A-1A, Class A-M, Class A-J, Class B, Class C
and Class D Certificates have been reduced to zero, to distributions of
principal to the Holders of the Class E Certificates, in an amount (not to
exceed the Class Principal Balance of the Class E Certificates outstanding
immediately prior to such Distribution Date) equal to the entire remaining
Principal Distribution Amount for such Distribution Date;
(xxi) to distributions to the Holders of the Class E Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated to
the Class Principal Balance of the Class E Certificates and that remain
unreimbursed immediately prior to such Distribution Date;
(xxii) to distributions of interest to the Holders of the Class F
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(xxiii) if the Class Principal Balances of the Class A-1, Class A-2,
Class A-3, Class A-4, Class A-1A, Class A-M, Class A-J, Class B, Class C,
Class D and Class E Certificates have been reduced to zero, to
distributions of principal to the Holders of the Class F Certificates, in
an amount (not to exceed the Class Principal Balance of the Class F
Certificates outstanding immediately prior to such Distribution Date)
equal to the entire remaining Principal Distribution Amount for such
Distribution Date;
(xxiv) to distributions to the Holders of the Class F Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated to
the Class Principal Balance of the Class F Certificates and that remain
unreimbursed immediately prior to such Distribution Date;
(xxv) to distributions of interest to the Holders of the Class G
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(xxvi) if the Class Principal Balances of the Class A-1, Class A-2,
Class A-3, Class A-4, Class A-1A, Class A-M, Class A-J, Class B, Class C,
Class D, Class E and Class F Certificates have been reduced to zero, to
distributions of principal to the Holders of the Class G Certificates, in
an amount (not to exceed the Class Principal Balance of the Class G
Certificates outstanding immediately prior to such Distribution Date)
equal to the entire remaining Principal Distribution Amount for such
Distribution Date;
(xxvii) to distributions to the Holders of the Class G Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated to
the Class Principal Balance of the Class G Certificates and that remain
unreimbursed immediately prior to such Distribution Date;
(xxviii) to distributions of interest to the Holders of the Class H
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(xxix) if the Class Principal Balances of the Class A-1, Class A-2,
Class A-3, Class A-4, Class A-1A, Class A-M, Class A-J, Class B, Class C,
Class D, Class E, Class F and Class G Certificates have been reduced to
zero, to distributions of principal to the Holders of the Class H
Certificates, in an amount (not to exceed the Class Principal Balance of
the Class H Certificates outstanding immediately prior to such
Distribution Date) equal to the entire remaining Principal Distribution
Amount for such Distribution Date;
(xxx) to distributions to the Holders of the Class H Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated to
the Class Principal Balance of the Class H Certificates and that remain
unreimbursed immediately prior to such Distribution Date;
(xxxi) to distributions of interest to the Holders of the Class J
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(xxxii) if the Class Principal Balances of the Class A-1, Class A-2,
Class A-3, Class A-4, Class A-1A, Class A-M, Class A-J, Class B, Class C,
Class D, Class E, Class F, Class G and Class H Certificates have been
reduced to zero, to distributions of principal to the Holders of the Class
J Certificates, in an amount (not to exceed the Class Principal Balances
of the Class J Certificates outstanding immediately prior to such
Distribution Date) equal to the entire remaining Principal Distribution
Amount for such Distribution Date;
(xxxiii) to distributions to the Holders of the Class J
Certificates, in an amount equal to, and in reimbursement of, all Realized
Losses and Additional Trust Fund Expenses, if any, that were previously
allocated to the Class Principal Balances of the Class J Certificates and
that remain unreimbursed immediately prior to such Distribution Date;
(xxxiv) to distributions of interest to the Holders of the Class K
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(xxxv) if the Class Principal Balances of the Class A-1, Class A-2,
Class A-3, Class A-4, Class A-1A, Class A-M, Class A-J, Class B, Class C,
Class D, Class E, Class F, Class G, Class H and Class J Certificates have
been reduced to zero, to distributions of principal to the Holders of the
Class K Certificates, in an amount (not to exceed the Class Principal
Balance of the Class K Certificates outstanding immediately prior to such
Distribution Date) equal to the entire remaining Principal Distribution
Amount for such Distribution Date;
(xxxvi) to distributions to the Holders of the Class K Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated to
the Class Principal Balance of the Class K Certificates and that remain
unreimbursed immediately prior to such Distribution Date;
(xxxvii) to distributions of interest to the Holders of the Class L
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(xxxviii) if the Class Principal Balances of the Class A-1, Class
A-2, Class A-3, Class A-4, Class A-1A, Class A-M, Class A-J, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J and Class K
Certificates have been reduced to zero, to distributions of principal to
the Holders of the Class L Certificates, in an amount (not to exceed the
Class Principal Balance of the Class L Certificates outstanding
immediately prior to such Distribution Date) equal to the entire remaining
Principal Distribution Amount for such Distribution Date;
(xxxix) to distributions to the Holders of the Class L Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated to
the Class Principal Balance of the Class L Certificates and that remain
unreimbursed immediately prior to such Distribution Date;
(xl) to distributions of interest to the Holders of the Class M
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(xli) if the Class Principal Balances of the Class A-1, Class A-2,
Class A-3, Class A-4, Class A-1A, Class A-M, Class A-J, Class B, Class C,
Class D, Class E, Class F, Class G, Class H, Class J, Class K and Class L
Certificates have been reduced to zero, to distributions of principal to
the Holders of the Class M Certificates, in an amount (not to exceed the
Class Principal Balance of the Class M Certificates outstanding
immediately prior to such Distribution Date) equal to the entire remaining
Principal Distribution Amount for such Distribution Date;
(xlii) to distributions to the Holders of the Class M Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated to
the Class Principal Balance of the Class M Certificates and that remain
unreimbursed immediately prior to such Distribution Date;
(xliii) to distributions of interest to the Holders of the Class N
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(xliv) if the Class Principal Balances of the Class A-1, Class A-2,
Class A-3, Class A-4, Class A-1A, Class A-M, Class A-J, Class B, Class C,
Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L and
Class M Certificates have been reduced to zero, to distributions of
principal to the Holders of the Class N Certificates, in an amount (not to
exceed the Class Principal Balance of the Class N Certificates outstanding
immediately prior to such Distribution Date) equal to the entire remaining
Principal Distribution Amount for such Distribution Date;
(xlv) to distributions to the Holders of the Class N Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated to
the Class Principal Balance of the Class N Certificates and that remain
unreimbursed immediately prior to such Distribution Date;
(xlvi) to distributions of interest to the Holders of the Class O
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(xlvii) if the Class Principal Balances of the Class A-1, Class A-2,
Class A-3, Class A-4, Class A-1A, Class A-M, Class A-J, Class B, Class C,
Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L,
Class M and Class N Certificates have been reduced to zero, to
distributions of principal to the Holders of the Class O Certificates, in
an amount (not to exceed the Class Principal Balance of the Class O
Certificates outstanding immediately prior to such Distribution Date)
equal to the entire remaining Principal Distribution Amount for such
Distribution Date;
(xlviii) to distributions to the Holders of the Class O
Certificates, in an amount equal to, and in reimbursement of, all Realized
Losses and Additional Trust Fund Expenses, if any, that were previously
allocated to the Class Principal Balance of the Class O Certificates and
that remain unreimbursed immediately prior to such Distribution Date;
(xlix) to distributions of interest to the Holders of the Class P
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(l) if the Class Principal Balances of the Class A-1, Class A-2,
Class A-3, Class A-4, Class A-1A, Class A-M, Class A-J, Class B, Class C,
Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L,
Class M, Class N and Class O Certificates have been reduced to zero, to
distributions of principal to the Holders of the Class P Certificates, in
an amount (not to exceed the Class Principal Balance of the Class P
Certificates outstanding immediately prior to such Distribution Date)
equal to the entire remaining Principal Distribution Amount for such
Distribution Date;
(li) to distributions to the Holders of the Class P Certificates, in
an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated to
the Class Principal Balance of the Class P Certificates and that remain
unreimbursed immediately prior to such Distribution Date; and
(lii) to distributions to the Holders of the Class R-II
Certificates, in the amount remaining in the REMIC II Distribution Account
for such Distribution Date remaining after the distributions to be made on
such Distribution Date pursuant to clauses (i) through (li) above;
provided that, on each Distribution Date coinciding with or following the Senior
Principal Distribution Cross-Over Date, and in any event on the Final
Distribution Date, the payments of principal to be made pursuant to clause (ii)
above, will be so made to the Holders of the Class A-1, Class A-2, Class A-3,
Class A-4 and Class A-1A Certificates, subject to available funds, up to an
amount equal to, and pro rata as among such Classes in accordance with, the
respective then outstanding Class Principal Balances of such Classes, and
without regard to the Principal Distribution Amount for such date; and provided,
further, that, on the Final Distribution Date, the payments of principal to be
made pursuant to any of clauses (v), (viii), (xi), (xiv), (xvii), (xx), (xxiii),
(xxvi), (xxix), (xxxii), (xxxv), (xxxviii), (xli), (xliv), (xlvii) and (l) above
with respect to any Class of Sequential Pay Certificates, will be so made to the
Holders thereof, subject to available funds, up to an amount equal to the entire
then outstanding Class Principal Balance of such Class of Certificates, and
without regard to the Principal Distribution Amount for such date. References to
"remaining Principal Distribution Amount" in clause (ii) above, in connection
with payments of principal to be made to the Holders of the Class A-1, Class
A-2, Class A-3, Class A-4 and Class A-1A Certificates shall be to the Principal
Distribution Amount for such Distribution Date, net of any distributions of
principal made in respect thereof to the Holders of each other Class of Class A
Certificates, if any, that pursuant to clause (ii) above has an earlier right to
payment with respect thereto. References to "remaining Principal Distribution
Amount" in any of clauses (v), (viii), (xi), (xiv), (xvii), (xx), (xxiii),
(xxvi), (xxix), (xxxii), (xxxv), (xxxviii), (xli), (xliv), (xlvii) and (l)
above, in connection with the payments of principal to be made to the Holders of
any Class of Sequential Pay Certificates, shall be to the Principal Distribution
Amount for such Distribution Date, net of any payments of principal made in
respect thereof to the Holders of each other Class of Sequential Pay
Certificates that has a higher Payment Priority.
All distributions of interest made in respect of the Class XW
Certificates on any Distribution Date pursuant to clause (i) above, shall be
deemed to have been made in respect of all the Components of such Class, pro
rata in accordance with the respective amounts of interest that would be payable
on such Components on such Distribution Date based on the Class XW Strip Rate of
such Component multiplied by its Component Notional Amount, less an allocable
portion of any Prepayment Interest Shortfall, together with any amounts thereof
remaining unpaid from previous Distribution Dates.
(c) (i) On each Distribution Date, Prepayment Premiums collected
during the related Collection Period with respect to the Group 1 Mortgage Loans
will be distributed by the Trustee to the following Classes: to the Class A-1,
Class A-2, Class A-3, Class A-4, Class A-1A, Class A-M, Class A-J, Class B,
Class C, Class D, Class E, Class F, Class G and Class H Certificates in an
amount equal to the product of (a) a fraction whose numerator is the amount
distributed as principal to such Class on such Distribution Date, and whose
denominator is the total amount distributed as principal to the Class A-1, Class
A-2, Class A-3, Class A-4, Class A-1A, Class A-M, Class A-J, Class B, Class C,
Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M,
Class N, Class O and Class P Certificates on such Distribution Date, (b) the
Base Interest Fraction for the related principal payment on such Class of
Certificates, and (c) the aggregate amount of Prepayment Premiums relating to
such Mortgage Loans collected on such principal prepayments during the related
Collection Period. On each Distribution Date, Prepayment Premiums collected
during the related Collection Period with respect to the Group 2 Mortgage Loans
will be distributed by the Trustee to the Class A-1A Certificates in an amount
equal to the product of (a) a fraction whose numerator is the amount distributed
as principal to such Class on such Distribution Date, and whose denominator is
the total amount received as principal for all Mortgage Loans in Loan Group 2 on
such Distribution Date, (b) the Base Interest Fraction for the related principal
payment on such Class of Certificates, and (c) the aggregate amount of
Prepayment Premiums relating to such Mortgage Loans collected on such principal
prepayments during the related Collection Period. Any Prepayment Premiums
collected on such Mortgage Loans during the related Collection Period remaining
after such distributions will be distributed entirely to the Holders of the
Class XW Certificates.
(ii) The "Base Interest Fraction" with respect to any Principal
Prepayment on any Mortgage Loan and with respect to any Class of REMIC II
Regular Certificates, is a fraction (a) whose numerator is the amount, if
any, by which (i) the Pass-Through Rate on such Class of Certificates
exceeds (ii) the Discount Rate and (b) whose denominator is the amount, if
any, by which (i) the Mortgage Rate on such Mortgage Loan exceeds (ii) the
Discount Rate. However, under no circumstances shall the Base Interest
Fraction be greater than one. If such Discount Rate is greater than or
equal to the lesser of (x) the Mortgage Rate on such Mortgage Loan and (y)
the Pass-Through Rate described in the preceding sentence, then the Base
Interest Fraction will equal zero. The "Discount Rate" with respect to any
applicable Prepayment Premium calculation, is the yield on the United
Stated Treasury issue with a maturity date closest to the Maturity Date
for the Mortgage Loan being prepaid (if applicable, converted to a monthly
compounded nominal yield), or an interpolation thereof, in any case as
specified and used in accordance with the related loan documents in
calculating the Prepayment Premium with respect to the related prepayment.
(iii) No Prepayment Premiums will be distributed to the holders of
the Non-Investment Grade Sequential Pay Certificates. After the
Certificate Principal Balances of the Investment Grade Sequential Pay
Certificates have been reduced to zero, all Prepayment Premiums and yield
maintenance charges with respect to the Mortgage Loans shall be
distributed to the holders of the Class XW Certificates.
(iv) All distributions of Prepayment Premiums made in respect of the
respective Classes of REMIC II Regular Certificates on each Distribution
Date pursuant to Section 4.01(c)(i) shall first be deemed to be
distributed from REMIC I to REMIC II in respect of the REMIC I Regular
Interests, pro rata based upon the amount of principal distributed in
respect of each Class of REMIC I Regular Interest for such Distribution
Date pursuant to Section 4.01(a)(ii).
(d) All distributions made with respect to each Class on each
Distribution Date shall be allocated pro rata among the outstanding Certificates
in such Class based on their respective Percentage Interests. Except as
otherwise provided below, all such distributions with respect to each Class of
Certificates on each Distribution Date shall be made to the Certificateholders
of the respective Class of record at the close of business on the related Record
Date and shall be made by wire transfer of immediately available funds to the
account of any such Certificateholder at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with written wiring instructions no less than five Business Days
prior to the related Record Date (which wiring instructions may be in the form
of a standing order applicable to all subsequent Distribution Dates), or
otherwise by check mailed to the address of such Certificateholder as it appears
in the Certificate Register. The final distribution on each Certificate
(determined without regard to any possible future reimbursement of any Realized
Loss or Additional Trust Fund Expense previously allocated to such Certificate)
will be made in like manner, but only upon presentation and surrender of such
Certificate at the Corporate Trust Office or such other location specified in
the notice to Certificateholders of such final distribution. Any distribution
that is to be made with respect to a Certificate in reimbursement of a Realized
Loss or Additional Trust Fund Expense previously allocated thereto, which
reimbursement is to occur after the date on which such Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Certificateholder that surrendered such Certificate
as such address last appeared in the Certificate Register or to any other
address of which the Trustee was subsequently notified in writing.
(e) Each distribution with respect to a Book-Entry Certificate shall
be paid to the Depository, as Holder thereof, and the Depository shall be
responsible for crediting the amount of such distribution to the accounts of its
Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution to
the Certificate Owners that it represents and to each indirect participating
brokerage firm (a "brokerage firm" or "indirect participating firm") for which
it acts as agent. Each brokerage firm shall be responsible for disbursing funds
to the Certificate Owners that it represents. None of the Trustee, the
Certificate Registrar, the Depositor, the Master Servicer, the Special Servicer
or the REMIC Administrator shall have any responsibility therefor except as
otherwise provided by this Agreement or applicable law.
(f) The rights of the Certificateholders to receive distributions
from the proceeds of the Trust Fund in respect of their Certificates, and all
rights and interests of the Certificateholders in and to such distributions,
shall be as set forth in this Agreement. Neither the Holders of any Class of
Certificates nor any party hereto shall in any way be responsible or liable to
the Holders of any other Class of Certificates in respect of amounts properly
previously distributed on the Certificates. Distributions in reimbursement of
Realized Losses and Additional Trust Fund Expenses previously allocated to a
Class of Certificates shall not constitute distributions of principal and shall
not result in a reduction of the related Class Principal Balance.
(g) Except as otherwise provided in Section 9.01, whenever the
Trustee expects that the final distribution with respect to any Class of
Certificates (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to such
Class of Certificates) will be made on the next Distribution Date, the Trustee
shall, as soon as practicable in the month in which such Distribution Date
occurs, mail to each Holder of such Class of Certificates as of the date of
mailing a notice to the effect that:
(i) the Trustee expects that the final distribution with respect to
such Class of Certificates will be made on such Distribution Date but only upon
presentation and surrender of such Certificates at the Corporate Trust Office or
such other location therein specified, and
(ii) no interest shall accrue on such Certificates from and after
such Distribution Date.
Any funds not distributed to any Holder or Holders of Certificates
of such Class on such Distribution Date because of the failure of such Holder or
Holders to tender their Certificates shall, on such date, be set aside and held
uninvested in trust and credited to the account or accounts of the appropriate
non-tendering Holder or Holders. If any Certificates as to which notice has been
given pursuant to this Section 4.01(g) shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice all such Certificates shall not have been surrendered for cancellation,
the Trustee, directly or through an agent, shall take such steps to contact the
remaining non-tendering Certificateholders concerning the surrender of their
Certificates as it shall deem appropriate. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders following the
first anniversary of the delivery of such second notice to the non-tendering
Certificateholders shall be paid out of such funds. No interest shall accrue or
be payable to any Certificateholder on any amount held in trust hereunder by the
Trustee as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with this Section
4.01(g). If all of the Certificates shall not have been surrendered for
cancellation by the second anniversary of the delivery of the second notice, the
Trustee shall distribute to the Class R-II Certificateholders all unclaimed
funds and other assets that remain subject hereto.
(h) Notwithstanding any other provision of this Agreement, the
Trustee shall comply with all federal withholding requirements respecting
payments to Certificateholders of interest or original issue discount that the
Trustee reasonably believes are applicable under the Code taking into account
any applicable exemptions from, or reductions in, withholding upon receipt of
appropriate IRS forms and documentation. The consent of Certificateholders shall
not be required for such withholding. In the event the Trustee does withhold any
amount from interest or original issue discount payments or advances thereof to
any Certificateholder pursuant to federal withholding requirements, the Trustee
shall indicate the amount withheld to such Certificateholders. Such amounts
shall be deemed to have been distributed to such Certificateholders for all
purposes of this Agreement.
(i) On each Distribution Date, any Excess Interest received during
the related Collection Period with respect to the Mortgage Loans shall be
withdrawn by the Trustee from the Excess Interest Distribution Account and
distributed by the Trustee to the Holders of the Class V Certificates.
(j) On the final Master Servicer Remittance Date, the Master
Servicer shall withdraw from the Certificate Account and deliver to the REMIC
Administrator who shall distribute to the Holders of the Residual Certificates,
any Loss of Value Payments transferred from the Loss of Value Reserve Fund to
the Certificate Account on the immediately preceding Master Servicer Remittance
Date in accordance with Section 3.05(g), to the extent not otherwise included in
the Available Distribution Amount for the final Distribution Date.
Section 4.02 Statements to Certificateholders; Certain Reports by
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the Master Servicer and the Special Servicer.
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(a) On each Distribution Date, the Trustee shall provide or make
available, either in electronic format or by first class mail to each Holder
(and, if it shall have certified to the Trustee as to its Ownership Interest in
a Class of Book-Entry Certificates, each Certificate Owner) of the Certificates
and to the Rating Agencies a statement substantially in the form set forth as
Exhibit G hereto (a "Distribution Date Statement") and based upon the
information provided by the Master Servicer in accordance with Commercial
Mortgage Securities Association guidelines, as to the distributions made on such
Distribution Date setting forth:
(i) the amount of the distribution, if any, on such Distribution
Date to the Holders of each Class of REMIC II Regular Certificates in
reduction of the Class Principal Balance thereof;
(ii) the amount of the distribution, if any, on such Distribution
Date to the Holders of each Class of REMIC II Regular Certificates
allocable to Distributable Certificate Interest and the amount of the
distribution, if any, on such Distribution Date to the Holders of each
Class of REMIC II Regular Certificates allocable to Prepayment Premiums;
(iii) the aggregate amount of P&I Advances (both as to those within
any applicable grace period and those which are beyond any applicable
grace period, together with the aggregate amount of delinquencies) and
other Servicing Advances made in respect of the immediately preceding
Distribution Date;
(iv) P&I Advances outstanding as of the Master Servicer Remittance
Date;
(v) the aggregate amount of P&I Advances made with respect to the
Mortgage Pool and with respect to each Loan Group in respect of the
immediately preceding Determination Date;
(vi) the aggregate Stated Principal Balance of the Mortgage Pool
outstanding immediately before and immediately after such Distribution
Date;
(vii) the number, aggregate principal balance, weighted average
remaining term to maturity and weighted average Mortgage Rate of the
Mortgage Pool as of the end of the Collection Period for the immediately
preceding Determination Date;
(viii) as of the Determination Date for the related Distribution
Date, the number and aggregate unpaid principal balance of Mortgage Loans
(A) delinquent 30-59 days, (B) delinquent 60-89 days, (C) delinquent 90 or
more days, (D) current but specially serviced or in foreclosure but not an
REO Property and (E) identification of Mortgage Loans the Mortgagor for
which is subject to bankruptcy;
(ix) with respect to any REO Property included in the Trust Fund as
of the end of the Collection Period for such Distribution Date, the
principal balance of the Mortgage Loan as of the date such Mortgage Loan
became delinquent;
(x) the Accrued Certificate Interest and Distributable Certificate
Interest in respect of each Class of REMIC II Regular Certificates for
such Distribution Date;
(xi) the aggregate amount of Distributable Certificate Interest
payable in respect of each Class of REMIC II Regular Certificates on such
Distribution Date, including, without limitation, any Distributable
Certificate Interest remaining unpaid from prior Distribution Dates;
(xii) any unpaid Distributable Certificate Interest in respect of
each Class of REMIC II Regular Certificates after giving effect to the
distributions made on such Distribution Date;
(xiii) the Pass Through Rate for each Class of REMIC II Regular
Certificates for such Distribution Date;
(xiv) the Principal Distribution Amount with respect to the Mortgage
Pool and with respect to each Loan Group for such Distribution Date,
separately identifying the amounts distributable to each Class of REMIC II
Regular Certificates;
(xv) the aggregate of all Realized Losses incurred during the
related Collection Period and all Additional Trust Fund Expenses incurred
during the related Collection Period, and an itemization of all such
Additional Trust Fund Expenses;
(xvi) the Certificate Principal Balance or Notional Amount, as the
case may be, of each Class of REMIC II Regular Certificates outstanding
immediately before and immediately after such Distribution Date,
separately identifying any reduction therein due to the allocation of
Realized Losses and Additional Trust Fund Expenses on such Distribution
Date;
(xvii) the Certificate Factor for each Class of REMIC II Regular
Certificates immediately following such Distribution Date;
(xviii) the aggregate amount of servicing fees paid to the Master
Servicer and the Special Servicer, collectively and separately, during the
related Collection Period;
(xix) a brief description of any material waiver, modification or
amendment of any Loan entered into by the Master Servicer or Special
Servicer pursuant to Section 3.20 during the related Collection Period;
(xx) current and cumulative outstanding Advances with respect to the
Mortgage Pool and with respect to each Loan Group;
(xxi) current prepayments and curtailments;
(xxii) the number and aggregate principal balance of Mortgage Loans
as to which foreclosure proceedings have been commenced as to the related
Mortgaged Property;
(xxiii) the ratings from all Rating Agencies for all Classes of
Certificates; and
(xxiv) the CMSA Reconciliation of Funds Report.
Any item of information disclosed to the Trustee by the Master
Servicer pursuant to Section 3.19(a) since the preceding Distribution Date (or,
in the case of the initial Distribution Date, since the Closing Date) shall be
made available with the Distribution Date Statement.
In the case of information furnished pursuant to clauses (i), (ii)
and (iii) above, the amounts shall be expressed as a dollar amount in the
aggregate for all Certificates of each applicable Class and per Single
Certificate. Except with respect to the Certificate Factor (required to be
reported by clause (xvii) above), financial information reported by the Trustee
to the Certificateholders pursuant to this Section 4.02 shall be expressed as a
dollar amount rounded to the nearest whole cent. Absent actual knowledge of an
error therein, the Trustee shall have no obligation to recompute, recalculate or
verify any information provided to it by the Master Servicer or Special
Servicer. The calculations by the Trustee contemplated by this Section 4.02
shall, in the absence of manifest error, be presumptively deemed to be correct
for all purposes hereunder.
The Trustee shall be entitled to rely on but shall not be
responsible for the content or accuracy of any information provided by third
parties for purposes of preparing the Distribution Date Statement and may affix
thereto any disclaimer it deems appropriate in its reasonable discretion
(without suggesting liability on the part of any other party hereto).
Within a reasonable period of time after the end of each calendar
year, the Trustee shall furnish to each Person who at any time during the
calendar year was a Holder of a REMIC II Regular Certificate a statement
containing the information as to the applicable Class set forth in clauses (i),
(ii) and (iii) above of the description of Distribution Date Statement,
aggregated for such calendar year or applicable portion thereof during which
such Person was a Certificateholder, together with such other information as the
Trustee determines to be necessary to enable Certificateholders to prepare their
tax returns for such calendar year. Such obligation of the Trustee shall be
deemed to have been satisfied to the extent that substantially comparable
information shall be provided by the Trustee pursuant to any requirements of the
Code as from time to time are in force.
Upon filing with the IRS, the REMIC Administrator shall furnish to
the Holders of the Class R-I and Class R-II Certificates the IRS Form 1066 and
shall furnish their respective Schedules Q thereto at the times required by the
Code or the IRS, and shall provide from time to time such information and
computations with respect to the entries on such forms as any Holder of the
Class R-I and Class R-II Certificates may reasonably request.
The Trustee will make available each month, to the general public,
the Distribution Date Statement (and any additional files containing the same
information in an alternative format) via the Trustee's Website. In addition,
the Trustee will make available to the general public each month the Servicer
Reports, the CMSA Loan Setup File and the Trustee's Reports on the Trustee's
Website. In addition, the Trustee will make available, as a convenience for
interested parties (and not in furtherance of the distribution of the Base
Prospectus and the Prospectus Supplement under the securities laws), this
Agreement, the Base Prospectus and the Prospectus Supplement via the Trustee's
Website. The Trustee will also make available copies of the Depositor's
registration statement and any other materials the Depositor files with the
Securities and Exchange Commission, including distribution reports on Form 10-D,
annual reports on Form 10-K, current reports on Form 8-K and amendments to these
reports available through this website promptly upon filing. The Trustee shall
have the right to change the way the monthly statements to Certificateholders
are distributed in order to make such distribution more convenient and/or more
accessible to the above parties and the Trustee shall provide timely and
adequate notification to all above parties regarding any such changes. For
assistance with the above-referenced services, interested parties may call (301)
000-0000. The Trustee will make no representations or warranties as to the
accuracy or completeness of such documents and will assume no responsibility
therefor. In addition, upon authorization of the Depositor, that is hereby
given, the Trustee shall make available to Bloomberg, L.P., Xxxxx, LLC, Intex
Solutions, Inc. and Standard & Poor's Conquest or such other vendors as chosen
by the Depositor, including Reuters, all electronic reports delivered or made
available pursuant to Section 4.02 of this Agreement to the Certificateholders
using a format mutually acceptable to such vendors and the Trustee.
In connection with providing access to the Trustee's Website, the
Trustee may require registration and the acceptance of a disclaimer. The Trustee
shall not be liable for the dissemination of the information in accordance
herewith.
(b) By 12:00 noon (New York City time) on the third Business Day
following each Determination Date (or with respect to the CMSA Loan Periodic
Update File, by 2:00 p.m. (New York City time) on the second Business Day
following each Determination Date), the Master Servicer shall deliver to the
Trustee, in a computer-readable medium downloadable by the Trustee, each of the
files and reports comprising the CMSA Investor Reporting Package (other than the
CMSA Bond Level File and the CMSA Collateral Summary File, which are prepared by
the Trustee), each reflecting information as of the close of business on such
Determination Date, in a mutually agreeable electronic format. The CMSA Loan
Periodic Update File contained in the CMSA Investor Reporting Package and any
written information supplemental thereto shall include such information with
respect to the Mortgage Loans that is reasonably required by the Trustee for
purposes of making the calculations and preparing the reports for which the
Trustee is responsible pursuant to Section 4.01, this Section 4.02, Section 4.04
or any other section of this Agreement, as set forth in reasonable written
specifications or guidelines issued by the Trustee from time to time. Such
information may be delivered by the Master Servicer to the Trustee by telecopy
or in such electronic or other form as may be reasonably acceptable to the
Trustee and the Master Servicer.
The Special Servicer shall from time to time (and, in any event, as
may be reasonably required by the Master Servicer) provide the Master Servicer
with such information in its possession regarding the Specially Serviced Loans
and REO Properties as may be necessary for the Master Servicer to prepare each
report and any supplemental information to be provided by the Master Servicer to
the Trustee.
Notwithstanding the foregoing, the failure of the Master Servicer or
the Special Servicer to disclose any information otherwise required to be
disclosed pursuant to Section 4.02(a) or this Section 4.02(b) shall not
constitute a breach of Section 4.02(a) or of this Section 4.02(b) to the extent
the Master Servicer or the Special Servicer so fails because such disclosure, in
the reasonable belief of the Master Servicer or the Special Servicer, as the
case may be, would violate any applicable law or any provision of a loan
document prohibiting disclosure of information with respect to the Loans or the
Mortgaged Properties, would constitute a waiver of the attorney-client privilege
on behalf of the Trust or would otherwise materially harm the Trust Fund. The
Master Servicer or the Special Servicer may affix to any information provided by
it any disclaimer it deems appropriate in its reasonable discretion (without
suggesting liability on the part of any other party hereto).
(c) Not later than 2:00 p.m. (New York City time) on the first
Business Day following each Determination Date, the Special Servicer shall
prepare and deliver or cause to be delivered to the Master Servicer, the
following reports (or data fields required for the Master Servicer to produce
such reports) with respect to the Specially Serviced Loans and any REO
Properties, providing the required information as of such Determination Date:
(i) a CMSA Property File; and (ii) a CMSA Special Servicer Loan File. In
addition, the Special Servicer shall from time to time provide the Master
Servicer with such information in the Special Servicer's possession regarding
the Specially Serviced Loans and REO Properties as may be requested by the
Master Servicer and is reasonably necessary for the Master Servicer to prepare
each report and any supplemental information required to be provided by the
Master Servicer to the Trustee.
(d) Notwithstanding anything herein to the contrary, the failure of
the Master Servicer or Special Servicer to disclose any information otherwise
required to be disclosed by this Section 4.02 shall not constitute a breach of
this Section 4.02 to the extent the Master Servicer or Special Servicer so fails
because such disclosure, in the reasonable belief of the Master Servicer or the
Special Servicer as the case may be, would violate any applicable law or any
provision of a loan document prohibiting disclosure of information with respect
to the Loans or Mortgaged Properties or would constitute a waiver of the
attorney-client privilege on behalf of the Trust. The Master Servicer and
Special Servicer may disclose any such information or any additional information
to any Person so long as such disclosure is consistent with applicable law, the
related loan documents and the Servicing Standard. The Master Servicer or the
Special Servicer may affix to any information provided by it any disclaimer it
deems appropriate in its reasonable discretion (without suggesting liability on
the part of any other party hereto).
(e) If the Master Servicer or the Special Servicer is required to
deliver any statement, report or information under any provision of this
Agreement (other than reports to be delivered to the Trustee, which shall be
delivered directly to the Trustee in a mutually agreeable electronic format),
the Master Servicer or the Special Servicer, as the case may be, may satisfy
such obligation by (x) physically delivering a paper copy of such statement,
report or information, (y) delivering such statement, report or information in a
commonly used electronic format or (z) making such statement, report or
information available on the Master Servicer's internet website, unless this
Agreement expressly specifies a particular method of delivery.
Section 4.03 P&I Advances.
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(a) On each Master Servicer Remittance Date, the Master Servicer
shall in the case of all Mortgage Loans other than a Mortgage Loan included in
the Serviced Whole Loan, either (i) deposit into the Distribution Account from
its own funds an amount equal to the aggregate amount of P&I Advances, if any,
to be made in respect of the related Distribution Date, (ii) apply amounts held
in the Certificate Account for future distribution to Certificateholders in
subsequent months in discharge of any such obligation to make P&I Advances, or
(iii) make P&I Advances in the form of any combination of (i) and (ii)
aggregating the total amount of P&I Advances to be made; provided that if Late
Collections of any of the delinquent principal and/or interest in respect of
which it is to make P&I Advances on any Master Servicer Remittance Date are then
on deposit in the Certificate Account, the Master Servicer shall use such Late
Collections (net of any Master Servicing Fees, Liquidation Fees and Workout Fees
payable therefrom) to make such P&I Advances. With respect to each Serviced
Whole Loan, on each Master Servicer Remittance Date, the Master Servicer shall
either (i) deposit into the Serviced Whole Loan Custodial Account from its own
funds an amount equal to the aggregate amount of P&I Advances, if any, to be
made in respect of the related Distribution Date on the Serviced Whole Loan,
(ii) apply amounts held in the Serviced Whole Loan Custodial Account for future
distribution in subsequent months in discharge of any such obligation to make
P&I Advances, or (iii) make P&I Advances in the form of any combination of (i)
and (ii) aggregating the total amount of P&I Advances to be made; provided that
if Late Collections of any of the delinquent principal and/or interest in
respect of which it is to make P&I Advances on any Master Servicer Remittance
Date are then on deposit in the Serviced Whole Loan Custodial Account, the
Master Servicer shall use such Late Collections (net of any Master Servicing
Fees, Liquidation Fees and Workout Fees payable therefrom and any portion
thereof required to be paid to the One Stamford Forum Note B Holder under any
Intercreditor Agreement) to make such P&I Advances. Any amounts held in the
Certificate Account or if the Serviced Whole Loan is involved, the Serviced
Whole Loan Custodial Account, for future distribution and so used to make P&I
Advances (other than the Late Collections of the delinquent principal and/or
interest contemplated by the proviso to the preceding sentence) shall be
appropriately reflected in the Master Servicer's records and replaced by the
Master Servicer by deposit into the Certificate Account or, if the Serviced
Whole Loan is involved, the Serviced Whole Loan Custodial Account, on or before
the next succeeding Determination Date (to the extent not previously replaced
through the deposit of Late Collections of the delinquent principal and/or
interest in respect of which such P&I Advances were made). If, as of 3:00 p.m.,
New York City time, on any Master Servicer Remittance Date, the Master Servicer
shall not have made any P&I Advance required to be made (other than a P&I
Advance with respect to the One Stamford Forum Note B) on such date pursuant to
this Section 4.03(a) (and shall not have delivered to the Trustee the requisite
Officer's Certificate and documentation related to a determination of
nonrecoverability of a P&I Advance), then the Trustee shall provide notice of
such failure to a Servicing Officer of the Master Servicer by facsimile
transmission sent to telecopy no. (000) 000-0000 (or such alternative number
provided by the Master Servicer to the Trustee in writing) and by telephone at
telephone no. (000) 000-0000 (or such alternative number provided by the Master
Servicer to the Trustee in writing) as soon as possible, but in any event before
4:00 p.m., New York City time, on such Master Servicer Remittance Date. If,
after such notice, the Trustee does not receive the full amount of such P&I
Advances by the close of business (New York City time) on such Master Servicer
Remittance Date, then (i) unless the Trustee determines that such Advance would
be a Nonrecoverable P&I Advance if made or the Trustee shall make, by 11:00 a.m.
on the Distribution Date or in any event by such time as shall be required to
make the required distribution on such Distribution Date, the portion of such
P&I Advances that was required to be, but was not, made by the Master Servicer
on such Master Servicer Remittance Date and (ii) such failure shall constitute
an Event of Default on the part of the Master Servicer. None of the Master
Servicer or the Trustee shall be required to make a P&I Advance on the One
Stamford Forum Note B.
(b) The aggregate amount of P&I Advances to be made in respect of
the Loans (including, without limitation, Balloon Loans that are included in the
Trust Fund delinquent as to their respective Balloon Payments) and any REO
Serviced Loans for any Distribution Date shall equal, subject to subsection (c)
below, the aggregate of all Monthly Payments (other than Balloon Payments) and
any Assumed Monthly Payments, in each case net of related Master Servicing Fees
that were due or deemed due, as the case may be, in respect thereof on their
respective Due Dates during the related Collection Period and that were not paid
by or on behalf of the related Mortgagors or otherwise collected as of the close
of business on the Business Day before the Master Servicer Remittance Date;
provided that if an Appraisal Reduction Amount exists with respect to any
Required Appraisal Serviced Loan, then, in the event of subsequent delinquencies
thereon, the interest portion of the P&I Advance in respect of such Required
Appraisal Serviced Loan for the related Distribution Date shall be reduced (it
being herein acknowledged that there shall be no reduction in the principal
portion of such P&I Advance) to equal the product of (i) the amount of the
interest portion of such P&I Advance for such Required Appraisal Serviced Loan
for such Distribution Date without regard to this proviso, multiplied by (ii) a
fraction, expressed as a percentage, the numerator of which is equal to the
Stated Principal Balance of such Required Appraisal Serviced Loan immediately
prior to such Distribution Date, net of the related Appraisal Reduction Amount,
if any, and the denominator of which is equal to the Stated Principal Balance of
such Required Appraisal Serviced Loan immediately prior to such Distribution
Date; provided, further, that the Master Servicer shall not advance Excess
Interest with respect to ARD Loans or a Prepayment Premium.
(c) Notwithstanding anything herein to the contrary, no P&I Advance
shall be required to be made hereunder if such P&I Advance would, if made,
constitute a Nonrecoverable P&I Advance. In addition, with respect to the
Mortgage Loans other than Mortgage Loans included in the Serviced Whole Loan,
Nonrecoverable P&I Advances shall be reimbursable pursuant to Section 3.05(a)
out of general collections on the Mortgage Pool on deposit in the Certificate
Account. With respect to a Mortgage Loan included in the Serviced Whole Loan,
Nonrecoverable P&I Advances shall be reimbursable pursuant to Section 3.05(f).
The determination by the Master Servicer or the Trustee that it has made a
Nonrecoverable P&I Advance has been made or that any proposed P&I Advance, if
made, would constitute a Nonrecoverable P&I Advance, or any such determination
made by the Special Servicer, shall be evidenced by an Officer's Certificate
delivered promptly (and, in any event, in the case of a proposed P&I Advance by
the Master Servicer, no less than five Business Days prior to the related Master
Servicer Remittance Date) to the Trustee (or, if applicable, retained thereby),
the Depositor, the Rating Agencies, the Directing Certificateholder and the One
Stamford Forum Note B Holder and One Stamford Forum Controlling Holder (if the
Serviced Whole Loan is involved), setting forth the basis for such
determination, together with (such determination is prior to the liquidation of
the related Loan or REO Property) a copy of an Appraisal of the related
Mortgaged Property or REO Property, as the case may be, which shall have been
performed within the 12 months preceding such determination, and further
accompanied by any other information that the Master Servicer or the Special
Servicer may have obtained that supports such determination. The Trustee shall
deliver such Officer's Certificate as soon as practicable after its
determination that such P&I Advance would be nonrecoverable. If such an
Appraisal shall not have been required and performed pursuant to the terms of
this Agreement, the Master Servicer may, subject to its reasonable and good
faith determination that such Appraisal will demonstrate the nonrecoverability
of the related Advance, obtain an Appraisal for such purpose at the expense of
the Trust out of general collections. The Trustee shall be entitled to rely on
any determination of nonrecoverability that may have been made by the Master
Servicer with respect to a particular P&I Advance, and the Master Servicer and
the Trustee shall be entitled to rely on any determination of nonrecoverability
that may have been made by the Special Servicer with respect to a particular P&I
Advance in the case of Specially Serviced Loans.
(d) As and to the extent permitted by Section 3.05(a) or Section
3.05(f) with respect to a Whole Loan or any portion thereof, the Master Servicer
and the Trustee shall be entitled to receive interest at the Reimbursement Rate
in effect from time to time, accrued on the amount of each P&I Advance made
thereby (out of its own funds), to the extent that such P&I Advance relates to a
Past Grace Period Serviced Loan when made, or remains outstanding when such
Serviced Loan becomes a Past Grace Period Serviced Loan, in which case such
interest shall begin to accrue when such Serviced Loan becomes a Past Grace
Period Serviced Loan, for so long as such P&I Advance is outstanding (or, in the
case of Advance Interest payable to the Master Servicer, if earlier, until the
Late Collection of the delinquent principal and/or interest in respect of which
such P&I Advance was made has been received by the Master Servicer). Such
interest will be paid: first, out of any Default Charges as set forth in Section
3.27; and second, at any time coinciding with or following the reimbursement of
such P&I Advance, out of general collections on the Mortgage Loans and any REO
Properties on deposit in the Certificate Account or if the Serviced Whole Loan
is involved, out of general collections on deposit in the Serviced Whole Loan
Custodial Account. As and to the extent provided by Section 3.05(a) or Section
3.05(f) with respect to a Whole Loan, the Master Servicer shall reimburse itself
or the Trustee, as appropriate, for any P&I Advance made thereby as soon as
practicable after funds available for such purpose are deposited into the
Certificate Account or, if the Serviced Whole Loan is involved are deposited
into the Serviced Whole Loan Custodial Account, and in no event shall interest
accrue in accordance with this Section 4.03(d) on any P&I Advance as to which
the corresponding Late Collection had been received as of the related date on
which such P&I Advance was made. Interest accrued on any P&I Advance made under
with respect to any Whole Loan under this Section 4.03 shall be payable (unless
required to be paid to the One Stamford Forum Note B Holder under any
Intercreditor Agreement): (i) first, out of Default Charges collected on or in
respect of the related Mortgage Loan, as applicable, during the same Collection
Period in which such P&I Advance is reimbursed, (ii) second, out of Default
Charges collected on or in respect of the One Stamford Forum Note B, pro rata
during the 12-month period in which such Advance is reimbursed, (iii) third, to
the extent that the Default Charges described in the immediately preceding
clause (i) and (ii) are insufficient, but only if such P&I Advance is being
reimbursed at the same time or if such P&I Advance has been previously
reimbursed, out of any other collections that were made on or in respect of the
Serviced Whole Loan, and (iv) solely with respect to such Whole Loan, to the
extent that Default Charges or other collections described in the immediately
preceding clauses (i), (ii) and (iii) are insufficient, but only if such P&I
Advance is being reimbursed at the same time or if such Advances has been
previously reimbursed, out of general collections on or in respect of the
Mortgage Loans.
(e) With regard to such P&I Advances, the Master Servicer, the
Special Servicer or the Trustee shall account for that part of the P&I Advances
that is attributable to Past Grace Period Serviced Loans, and that part of the
P&I Advances that is attributable to Within Grace Period Loans.
Section 4.04 Allocation of Realized Losses and Additional Trust Fund
-------------------------------------------------------
Expenses.
---------
(a) On each Distribution Date, the Trustee shall determine the
amount, if any, by which (i) the then aggregate Certificate Principal Balance of
the Sequential Pay Certificates exceeds (ii) the aggregate Stated Principal
Balance of the Mortgage Pool that will be outstanding immediately following such
Distribution Date (provided, however, that for purposes of this calculation, any
Workout-Delayed Reimbursement Amounts paid from principal collections on the
Mortgage Pool shall for purposes of this calculation be deemed to still be
outstanding unless the related Unliquidated Advance has been determined to be a
Nonrecoverable Advance on the related Serviced Loan or a Final Determination has
been made with respect to the related Serviced Loan or the related Mortgage Loan
or REO Property is otherwise liquidated or disposed). If such excess does exist,
then the Class Principal Balances of the Class P, Class O, Class N, Class M,
Class L, Class K, Class J, Class H, Class G, Class F, Class E, Class D, Class C,
Class B, Class A-J and Class A-M Certificates shall be reduced sequentially, in
that order in each case, until such excess or the related Class Principal
Balance is reduced to zero (whichever occurs first). If, after the foregoing
reductions, the amount described in clause (i) of the second preceding sentence
still exceeds the amount described in clause (ii) of the second preceding
sentence, then the respective Class Principal Balances of the Class A-1, Class
A-2, Class A-3, Class A-4 and Class A-1A Certificates shall be reduced, pro rata
in accordance with the relative sizes of the then outstanding Class Principal
Balances of such Classes of Certificates, until such excess or each such Class
Principal Balance is reduced to zero (whichever occurs first). Such reductions
in the Class Principal Balances of the respective Classes of the Sequential Pay
Certificates shall be deemed to be allocations of Realized Losses and Additional
Trust Fund Expenses, to the extent not covered by reductions in distributions of
interest pursuant to the allocations set forth in Section 4.01(b).
(b) With respect to any Distribution Date, any Realized Losses or
Additional Trust Fund Expenses allocated pursuant to Section 4.04(a) with
respect to such Distribution Date shall reduce the REMIC I Principal Balances of
the REMIC I Regular Interests as a write-off and shall be allocated among the
REMIC I Regular Interests in the same priority as the Class of Corresponding
Certificates.
Section 4.05 Interest Reserve Account.
-------------------------
The Master Servicer shall establish and maintain the Interest
Reserve Account in the Trustee's name for the benefit of the Certificateholders.
The Interest Reserve Account shall be established and maintained, at all times,
as an Eligible Account, which the Master Servicer may (but shall not be
obligated to) invest only in Permitted Investments in accordance with Section
3.06. On each Master Servicer Remittance Date occurring in February and each
Master Servicer Remittance Date in January of any year that is not a leap year
(unless, in either case, the related Distribution Date is the final Distribution
Date), the Master Servicer shall withdraw from the Certificate Account, in
respect of each Mortgage Loan that accrues interest on an Actual/360 Basis, and
deposit into the Interest Reserve Account, an amount equal to one day's interest
at the related Net Mortgage Rate on the Stated Principal Balance of each such
Mortgage Loan or as of the Distribution Date in the month preceding the month in
which such Master Servicer Remittance Date occurs, to the extent a Monthly
Payment or P&I Advance is made in respect thereof (all amounts so deposited in
any consecutive January (if applicable) and February, "Withheld Amounts"). On
the Master Servicer Remittance Date in March of each calendar year (or February,
if the related Distribution Date is the final Distribution Date), the Master
Servicer shall remit to the Trustee for deposit into the REMIC I Distribution
Account all Withheld Amounts on deposit in the Interest Reserve Account with
respect to Mortgage Loans.
Section 4.06 Excess Interest Distribution Account.
------------------------------------
The Trustee shall establish and maintain the Excess Interest
Distribution Account in trust for the benefit of the Class V Certificateholders
whether or not such Certificates have an outstanding Class Principal Balance.
The Excess Interest Distribution Account shall be established and maintained at
all times as an Eligible Account, which the Trustee may (but shall not be
obligated to) invest only in Permitted Investments in accordance with Section
3.06. The Excess Interest Distribution Account may be a sub-account of the
Distribution Account. Prior to the applicable Distribution Date, the Master
Servicer shall remit to the Trustee for deposit in the Excess Interest
Distribution Account an amount equal to the Excess Interest received during the
applicable Collection Period. Following the distribution of Excess Interest to
Class V Certificateholders on the first Distribution Date after which there are
no longer any Mortgage Loans outstanding which pursuant to their terms could pay
Excess Interest, the Trustee shall terminate the Excess Interest Distribution
Account.
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates.
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(a) The Certificates will be substantially in the respective forms
annexed hereto as Exhibits A-1 through and including A-25; provided that any of
the Certificates may be issued with appropriate insertions, omissions,
substitutions and variations, and may have imprinted or otherwise reproduced
thereon such legend or legends, not inconsistent with the provisions of this
Agreement, as may be required to comply with any law or with rules or
regulations pursuant thereto, or with the rules of any securities market in
which the Certificates are admitted to trading, or to conform to general usage.
The Certificates will be issuable in registered form only; provided, however,
that in accordance with Section 5.03 beneficial ownership interests in the REMIC
II Regular Certificates shall initially be held and transferred through the
book-entry facilities of the Depository. The Class A-1, Class A-2, Class A-3,
Class A-4, Class A-1A, Class A-M and Class A-J Certificates will be issuable in
denominations corresponding to initial Certificate Principal Balances as of the
Closing Date of not less than $10,000 and any whole dollar denomination in
excess thereof; the Class 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 be issuable in denominations corresponding to initial Certificate Principal
Balances as of the Closing Date of not less than $100,000 and any whole dollar
denomination in excess thereof; and the Class XW Certificates will be issuable
in denominations corresponding to initial Notional Balances as of the Closing
Date of not less than $1,000,000 and any whole dollar denomination in excess
thereof; provided, however, that a single Certificate of any Class thereof may
be issued in a different denomination. The Class V Certificates will be issuable
only in denominations representing not less than 10% of the Percentage Interest.
Each Class of Residual Certificates will be issuable only in a denomination
representing the entire Class. With respect to any Certificate or any beneficial
interest in a Certificate, the "Denomination" thereof shall be (i) the amount
(a) set forth on the face thereof, (b) set forth on a schedule attached thereto
or (c) in the case of any beneficial interest in a Book-Entry Certificate, the
interest of the related Certificate Owner in the applicable Class of
Certificates as reflected on the books and records of the Depository or related
Participants, as applicable, (ii) expressed in terms of initial Certificate
Principal Balance or initial Notional Amount, as applicable, and (iii) be in an
authorized denomination, as set forth above. The Book-Entry Certificates will be
issued as one or more certificates registered in the name of a nominee
designated by the Depository, and Certificate Owners will hold interests in the
Book-Entry Certificates through the book-entry facilities of the Depository in
the minimum Denominations and aggregate Denominations as set forth in the above.
No Certificate Owner of a Book-Entry Certificate of any Class thereof will be
entitled to receive a Definitive Certificate representing its interest in such
Class, except as provided in Section 5.03. Unless and until Definitive
Certificates are issued in respect of a Class of Book-Entry Certificates,
beneficial ownership interests in such Class of Certificates will be maintained
and transferred on the book-entry records of the Depository and Depository
Participants, and all references to actions by Holders of such Class of
Certificates will refer to action taken by the Depository upon instructions
received from the related registered Holders of Certificates through the
Depository Participants in accordance with the Depository's procedures and,
except as otherwise set forth herein, all references herein to payments,
notices, reports and statements to Holders of such Class of Certificates will
refer to payments, notices, reports and statements to the Depository or its
nominee as the registered Holder thereof, for distribution to the related
registered Holders of Certificates through the Depository Participants in
accordance with the Depository's procedures.
(b) The Certificates shall be executed by manual or facsimile
signature on behalf of the Trustee in its capacity as trustee hereunder by an
authorized signatory. Certificates bearing the manual or facsimile signatures of
individuals who were at any time the authorized officers of the Trustee shall be
entitled to all benefits under this Agreement, subject to the following
sentence, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Certificates
or did not hold such offices at the date of such Certificates. No Certificate
shall be entitled to any benefit under this Agreement, or be valid for any
purpose, however, unless there appears on such Certificate a certificate of
authentication substantially in the form provided for herein executed by the
Certificate Registrar by manual signature, and such certificate of
authentication upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their authentication;
provided that the Certificates, issued on the Closing Date shall, in any event,
be dated the Closing Date.
(c) Any Definitive Certificates shall be printed, typewritten,
lithographed or engraved or produced by any combination of these methods or may
be produced in any other manner permitted by the rules of any securities
exchange on which any of the Certificates may be listed, or as may, consistently
herewith, be determined by the officers executing such Certificates, as
evidenced by their execution thereof.
Section 5.02 Registration of Transfer and Exchange of Certificates.
------------------------------------------------------
(a) At all times during the term of this Agreement, there shall be
maintained at the office of the Certificate Registrar a Certificate Register in
which, subject to such reasonable regulations as the Certificate Registrar
(located as of the Closing Date at Xxxxx Fargo Center, Sixth and Marquette,
Minneapolis, Minnesota 55479-0113) may prescribe, the Certificate Registrar
shall provide for the registration of Certificates and of transfers and
exchanges of Certificates as herein provided. The Trustee is hereby initially
appointed (and hereby agrees to act in accordance with the terms hereof) as
Certificate Registrar for the purpose of registering Certificates and transfers
and exchanges of Certificates as herein provided. The Trustee may appoint, by a
written instrument delivered to the Depositor, the Master Servicer, the Special
Servicer and the REMIC Administrator, any other bank or trust company to act as
Certificate Registrar under such conditions as the predecessor Certificate
Registrar may prescribe, provided that the Trustee shall not be relieved of any
of its duties or responsibilities hereunder as Certificate Registrar by reason
of such appointment. If the Trustee resigns or is removed in accordance with the
terms hereof, the successor trustee shall immediately succeed to its
predecessor's duties as Certificate Registrar. The Depositor, the Master
Servicer, the Special Servicer and the REMIC Administrator shall have the right
to inspect the Certificate Register or to obtain a copy thereof at all
reasonable times, and to rely conclusively upon a certificate of the Certificate
Registrar as to the information set forth in the Certificate Register. Upon
request, the Trustee shall promptly inform, or cause the Certificate Registrar
to inform, the Master Servicer or the Special Servicer, as applicable, of the
identity of all Certificateholders of the Controlling Class.
If Certificateholders representing more than 25% of any Class of
Certificates (hereinafter referred to as "applicants") apply in writing to the
Trustee, and such application states that the applicants desire to communicate
with other Certificateholders with respect to their rights under this Agreement
or under the Certificates and is accompanied by a copy of the communication that
such applicants propose to transmit, then the Trustee shall, within five
Business Days after the receipt of such application, afford such applicants
access during normal business hours to the most recent list of
Certificateholders held by the Trustee. If the Trustee is no longer the
Certificate Registrar and such a list is as of a date more than 90 days prior to
the date of receipt of such applicants' request, the Trustee shall promptly
request from the Certificate Registrar a current list as provided above, and
shall afford such applicants access to such list promptly upon receipt.
Every Certificateholder, by receiving and holding such list, agrees
with the Certificate Registrar and the Trustee that neither the Certificate
Registrar nor the Trustee shall be held accountable by reason of the disclosure
of any such information as to the names and addresses of the Certificateholders
hereunder, regardless of the source from which such information was derived.
(b) No transfer of any Non-Registered Certificate shall be made
unless that transfer is made pursuant to an effective registration statement
under the Securities Act, and effective registration or qualification under
applicable state securities laws, or is made in a transaction that does not
require such registration or qualification. If a transfer (other than one by the
Depositor to an Affiliate thereof or the initial transfer thereof) is to be made
in reliance upon an exemption from the Securities Act, and under the applicable
state securities laws, then either: (i) the Certificate Registrar shall require
that the transferee deliver to the Certificate Registrar an investment
representation letter (the "Investment Representation Letter") substantially in
the form of Exhibit B attached hereto, which Investment Representation Letter
shall certify, among other things, that the transferee is an institutional
"accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) of
Regulation D under the Securities Act (an "Institutional Accredited Investor")
or a "qualified institutional buyer" as defined in Rule 144A under the
Securities Act (a "Qualified Institutional Buyer"), and the Certificate
Registrar may also require that the transferee deliver to the Certificate
Registrar an Opinion of Counsel if such transferee is not a Qualified
Institutional Buyer or (ii) if the certifications described in the preceding
clause (i) cannot be provided, (a) the Certificate Registrar shall require an
Opinion of Counsel reasonably satisfactory to the Certificate Registrar and the
Depositor that such transfer may be made pursuant to an exemption, describing
the applicable exemption and the basis therefor, from registration or
qualification under the Securities Act, applicable state securities laws and
other relevant laws, which Opinion of Counsel shall not be an expense of the
Trust Fund, the Certificate Registrar, the Depositor or the Trustee and (b) the
Certificate Registrar shall require the transferor to execute a certification in
form and substance satisfactory to the Certificate Registrar setting forth the
facts surrounding such transfer; provided, however, that a transfer of a
Non-Registered Certificate of any such Class may be made to a trust if the
transferor provides to the Certificate Registrar and to the Trustee a
certification that interests in such trust may only be transferred subject to
requirements substantially to the effect set forth in this Section 5.02. The
Master Servicer will furnish, or cause to be furnished, upon the request of any
Holder of Non-Registered Certificates, to a prospective purchaser of such
Non-Registered Certificates who is a Qualified Institutional Buyer, such
information relating to the Mortgage Loans that are in its possession and as is
specified in paragraph (d)(4) of Rule 144A with respect to the Trust Fund,
unless, at the time of such request, the entity with respect to which such
information is to be provided is subject to the reporting requirements of
Section 15(d) of the Exchange Act. None of the Depositor, the Trustee, the
Master Servicer, the Special Servicer or the Certificate Registrar is obligated
to register or qualify any Class of Non-Registered Certificates under the
Securities Act or any other securities law or to take any action not otherwise
required under this Agreement to permit the transfer of any Non-Registered
Certificate without registration or qualification. Any Holder of a
Non-Registered Certificate desiring to effect such a transfer shall, and does
hereby agree to, indemnify the Depositor, the Trustee, the Master Servicer, the
Special Servicer and the Certificate Registrar against any liability that may
result if the transfer is not so exempt or is not made in accordance with such
federal and state laws. Unless the Certificate Registrar determines otherwise in
accordance with applicable law and the rules and procedures of, or applicable
to, the Depository (the "Depository Rules"), transfers of a beneficial interest
in a Book-Entry Certificate representing an interest in a Non-Registered
Certificate that is not rated in one of the top four categories by a nationally
recognized statistical rating organization to (i) an Institutional Accredited
Investor will require delivery in the form of a Definitive Certificate and the
Certificate Registrar shall register such transfer only upon compliance with the
foregoing provisions of this Section 5.02(b) or (ii) a Qualified Institutional
Buyer may only be effectuated by means of an "SRO Rule 144A System" approved for
such purpose by the Commission.
(c) With respect to the ERISA Restricted Certificates, the Class V
Certificates and Residual Certificates: no sale, transfer, pledge or other
disposition by any Holder of any such Certificate shall be made unless the
Certificate Registrar shall have received either (i) a representation letter
from the proposed purchaser or transferee of such Certificate substantially in
the form of Exhibit E attached hereto, to the effect that such proposed
purchaser or transferee is not (a) an employee benefit plan subject to the
fiduciary responsibility provisions of ERISA or a plan subject to Section 4975
of the Code, or a governmental plan (as defined in Section 3(32) of ERISA)
subject to any federal, state or local law ("Similar Law") that is, to a
material extent, similar to the foregoing provisions of ERISA or the Code (each
a "Plan") or (b) a person acting on behalf of or using the assets of any such
Plan (including an entity whose underlying assets include Plan assets by reason
of investment in the entity by such Plan and the application of Department of
Labor Regulation ss. 2510.3-101), other than (except with respect to the Class V
Certificates or a Residual Certificate) an insurance company using the assets of
its general account under circumstances whereby the purchase and holding of such
Certificates by such insurance company would be exempt from the prohibited
transaction provisions of ERISA and the Code under Prohibited Transaction Class
Exemption 95-60 or (ii) except for the Class V Certificates or the Residual
Certificates (which may not be transferred to a Holder who does not make the
representation described in clause (i)(a) or (i)(b)), if such Certificate is
presented for registration in the name of a purchaser or transferee that is any
of the foregoing, any Opinion of Counsel or other certification as the
Certificate Registrar may reasonably require and in form and substance
satisfactory to the Certificate Registrar and the Depositor to the effect that
the acquisition and holding of such Certificate by such purchaser or transferee
will not constitute or result in a non-exempt "prohibited transaction" within
the meaning of ERISA, Section 4975 of the Code or any Similar Law, and will not
subject the Trustee, the Certificate Registrar, the Master Servicer, the Special
Servicer, the Underwriters, the Placement Agent or the Depositor to any
obligation or liability (including obligations or liabilities under ERISA,
Section 4975 of the Code or any such Similar Law) in addition to those set forth
in the Agreement. The Certificate Registrar shall not register the sale,
transfer, pledge or other disposition of any such Certificate unless the
Certificate Registrar has received either the representation letter described in
clause (i) above or, with respect to the ERISA Restricted Certificates, the
Opinions of Counsel or other certification described in clause (ii) above. The
costs of any of the foregoing representation letters, certifications or Opinions
of Counsel shall not be borne by any of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Underwriters, the Placement Agent, the
Certificate Registrar or the Trust Fund. With respect to transfers of Book-Entry
Certificates only, to the extent the purchase or holding of a Certificate
described in this Section 5.02(c) would be restricted by ERISA, the Code or
Similar Law, each Certificate Owner of such Certificate shall be deemed to
represent that it is not a Person specified in clause (i)(a) or (i)(b) above and
therefore shall not be required pursuant to this Section 5.02(c) to deliver to
the Certificate Registrar the representation letter in the form of Exhibit E
attached hereto described in clause (i) above, or the Opinion of Counsel or
other certification described in clause (ii) above. Any transfer, sale, pledge
or other disposition of any such Certificates that would constitute or result in
a prohibited transaction under ERISA, Section 4975 of the Code or any Similar
Law, or would otherwise violate the provisions of this Section 5.02(c) shall be
deemed absolutely null and void ab initio, to the extent permitted under
applicable law.
Any transfer, sale, pledge or other disposition of any such
Certificates that would constitute or result in a prohibited transaction under
ERISA, Section 4975 of the Code or any Similar Law, or would otherwise violate
the provisions of this Section 5.02(c) shall be deemed absolutely null and void
ab initio, to the extent permitted under applicable law.
So long as any of the Class of Certificates remains outstanding, the
Master Servicer will make available, or cause to be made available, upon
request, to any Holder and any Person to whom any such Certificate of any such
Class of Certificates may be offered or sold, transferred, pledged or otherwise
disposed of by such Holder, information with respect to the Master Servicer, the
Special Servicer or the Mortgage Loans reasonably necessary to the provision of
an Opinion of Counsel described in this Section 5.02(c).
(d) (i) Each Person who has or who acquires any Ownership Interest
in a Residual Certificate shall be deemed by the acceptance or acquisition of
such Ownership Interest to have agreed to be bound by the following provisions
and to have irrevocably authorized the Trustee under clause (ii) below to
deliver payments to a Person other than such Person. The rights of each Person
acquiring any Ownership Interest in a Residual Certificate are expressly subject
to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in
a Residual Certificate shall be a Permitted Transferee and shall
promptly notify the Trustee and the REMIC Administrator of any
change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership
Interest in a Residual Certificate (other than in connection with
the initial issuance thereof or the transfer thereof among the
Depositor and its Affiliates), the Certificate Registrar shall
require delivery to it, and shall not register the Transfer of any
Residual Certificate until its receipt of, an affidavit and
agreement substantially in the form attached hereto as Exhibit C-1
(a "Transfer Affidavit and Agreement") from the proposed Transferee,
in form and substance satisfactory to the Certificate Registrar,
representing and warranting, among other things, that such
Transferee is a Permitted Transferee, that it is not acquiring its
Ownership Interest in the Residual Certificate that is the subject
of the proposed Transfer as a nominee, trustee or agent for any
Person that is not a Permitted Transferee, that for so long as it
retains its Ownership Interest in a Residual Certificate it will
endeavor to remain a Permitted Transferee, and that it has reviewed
the provisions of this Section 5.02(d) and agrees to be bound by
them.
(C) Notwithstanding the delivery of a Transfer Affidavit and
Agreement by a proposed Transferee under clause (B) above, if the
Certificate Registrar has actual knowledge that the proposed
Transferee is not a Permitted Transferee, no Transfer of an
Ownership Interest in a Residual Certificate to such proposed
Transferee shall be effected.
(D) Except in connection with the initial issuance of the
Residual Certificates or any transfer thereof among the Depositor
and its Affiliates, each Person holding or acquiring any Ownership
Interest in a Residual Certificate shall agree (1) to require a
Transfer Affidavit and Agreement from any prospective Transferee to
whom such Person attempts to transfer its Ownership Interest in such
Residual Certificate and (2) not to transfer its Ownership Interest
in such Residual Certificate unless it provides to the Certificate
Registrar a certificate substantially in the form attached hereto as
Exhibit C-2 stating that, among other things, it has no actual
knowledge that such prospective Transferee is not a Permitted
Transferee.
(ii) If any purported Transferee shall become a Holder of a Residual
Certificate in violation of the provisions of this Section 5.02(d), then
the last preceding Holder of such Residual Certificate that was in
compliance with the provisions of this Section 5.02(d) shall be restored,
to the extent permitted by law, to all rights as Holder thereof
retroactive to the date of registration of such Transfer of such Residual
Certificate. None of the Trustee, the Master Servicer, the Special
Servicer, the REMIC Administrator or the Certificate Registrar shall be
under any liability to any Person for any registration of Transfer of a
Residual Certificate that is in fact not permitted by this Section 5.02(d)
or for making any payments due on such Certificate to the Holder thereof
or for taking any other action with respect to such Holder under the
provisions of this Agreement.
(iii) The REMIC Administrator shall make available to the IRS and
those Persons specified by the REMIC Provisions all information necessary
to compute any tax imposed as a result of the Transfer of an Ownership
Interest in a Residual Certificate to any Person who is a Disqualified
Organization or a nominee, agent or middleman thereof, including the
information described in Treasury Regulations Sections 1.860D-1(b)(5) and
1.860E-2(a)(5) with respect to the "excess inclusions" of such Residual
Certificate. The Person holding such Ownership Interest shall be
responsible for the reasonable compensation of the REMIC Administrator for
providing such information.
(e) Subject to the restrictions on transfer and exchange set forth
in this Section 5.02, the Holder of any Definitive Certificate may transfer or
exchange the same in whole or in part (with a Denomination equal to any
authorized denomination) by surrendering such Certificate at the Certificate
Registrar's office or at the office of any successor Certificate Registrar or
transfer agent appointed by the Certificate Registrar, together with an
instrument of assignment or transfer (executed by the Holder or its duly
authorized attorney), in the case of transfer, and a written request for
exchange in the case of exchange. Subject to the restrictions on transfer set
forth in this Section 5.02 and Depository Rules, any Certificate Owner owning a
beneficial interest in a Non-Registered Certificate may cause the Certificate
Registrar to request that the Depository exchange such Certificate Owner's
beneficial interest in a Book-Entry Certificate for a Definitive Certificate or
Certificates. Following a proper request for transfer or exchange, the
Certificate Registrar shall, execute and deliver at such offices or at the
office of such transfer agent, as the case may be, to the transferee (in the
case of transfer) or Holder (in the case of exchange) or send by first class
mail (at the risk of the transferee in the case of transfer or Holder in the
case of exchange) to such address as the transferee or Holder, as applicable,
may request, a Definitive Certificate or Certificates, as the case may require,
for a like aggregate Denomination and in such Denomination or Denominations as
may be requested.
(f) In the event a Responsible Officer of the Certificate Registrar
becomes aware that a Definitive Certificate or a beneficial interest in a
Book-Entry Certificate representing a Non-Registered Certificate is being held
by or for the benefit of a Person who is not an Institutional Accredited
Investor, or that such holding is unlawful under the laws of a relevant
jurisdiction, then the Certificate Registrar shall have the right to void such
transfer, if permitted under applicable law, or to require the investor to sell
such Definitive Certificate or beneficial interest in such Book-Entry
Certificate to an Institutional Accredited Investor within 14 days after notice
of such determination and each Certificateholder by its acceptance of a
Certificate authorizes the Certificate Registrar to take such action.
(g) Every Certificate presented or surrendered for transfer or
exchange shall (if so required by the Certificate Registrar) be duly endorsed
by, or be accompanied by a written instrument of transfer in the form
satisfactory to the Certificate Registrar duly executed by, the Holder thereof
or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange
of Certificates, but the Trustee or the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates. In
addition, in connection with any transfer to an Institutional Accredited
Investor, the transferor shall reimburse the Trust Fund for any costs (including
the cost of the Certificate Registrar's counsel's review of the documents and
any legal opinions, submitted by the transferor or transferee to the Certificate
Registrar as provided herein) incurred by the Certificate Registrar in
connection with such transfer.
(i) Subsequent to the initial issuance of the Certificates, the
Trustee shall be responsible for the preparation of physical Certificates in
connection with any transfer or exchange; provided that the correct form of
Certificate of each Class shall be provided by the Depositor to the Trustee on
diskette on or about the Closing Date. All Certificates surrendered for transfer
and exchange shall be physically canceled by the Certificate Registrar, and the
Certificate Registrar shall hold or destroy such canceled Certificates in
accordance with its standard procedures.
(j) The Certificate Registrar shall be required to provide the
Depositor and the REMIC Administrator with an updated copy of the Certificate
Register on or about January 1 of each year, commencing January 1, 2007, and
shall be required to provide the Depositor, the Master Servicer, the Special
Servicer or the REMIC Administrator with an updated copy of the Certificate
Register at other times promptly upon written request therefor.
(k) If a Person is acquiring any Non-Registered Certificate or
interest therein as a fiduciary or agent for one or more accounts, such Person
shall be required to deliver to the Certificate Registrar (or, in the case of a
Book-Entry Certificate, to the Certificate Owner that is transferring such
interest) a certification to the effect that, and such other evidence as may be
reasonably required by the Trustee (or such Certificate Owner) to confirm that,
it has (i) sole investment discretion with respect to each such account and (ii)
full power to make the acknowledgments, representations, warranties,
certification and agreements with respect to each such account as set forth in
subsections (b), (c) and (d), as applicable, of this Section 5.02.
(l) [RESERVED].
(m) Any Holder of an interest in a Regulation S Global Certificate
in respect of the Certificates shall have the right, upon prior written notice
to the Depositor, the Trustee, Euroclear or Clearstream, as applicable, and the
Depository, in the form of the Exchange Certificate attached hereto as Exhibit
Q, to exchange all or a portion of such interest for an equivalent interest in a
Domestic Global Certificate in connection with a transfer of its interest
therein to a transferee that is eligible to hold an interest in a Domestic
Global Certificate as set forth herein. Any Holder of an interest in a Domestic
Global Certificate shall have the right, upon prior written notice to the
Depositor, the Trustee, the Depository and Euroclear or Clearstream, as
applicable, in the form of the Exchange Certificate attached hereto as Exhibit O
or Exhibit P, as applicable, to exchange all or a portion of such interest for
an equivalent interest in a Regulation S Global Certificate in connection with a
transfer of its interest therein to a transferee that is eligible to hold an
interest in a Regulation S Global Certificate as set forth herein. The Exchange
Certificate shall specify the denomination of the Certificates to be exchanged.
The Exchange Certificate shall also contain a representation that the transfer
is being made in a transaction meeting the requirements of Rule 144A or
Regulation S, as the case may be. Following receipt of any Exchange Certificate
by the Depositor or the Trustee, (i) the Trustee shall endorse the schedule to
any Global Certificate representing the Certificate or Certificates being
exchanged to reduce the stated principal or notional amount of such Global
Certificate by the denominations of the Certificate or Certificates for which
such exchange is to be made, and (ii) the Trustee shall endorse the schedule to
any Global Certificate representing the Certificate or Certificates for which
such exchange is to be made to increase the stated principal or notional amount
of such Global Certificate by the denominations of the Certificate or
Certificates being exchanged therefor. The form of the Exchange Certificate
shall be available from the Trustee.
Section 5.03 Book-Entry Certificates.
------------------------
(a) The Class A-1, Class A-2, Class A-3, Class A-4, Class A-1A,
Class A-M, Class A-J, Class B, Class C, Class D, Class E, Class F, Class G,
Class H, Class J, Class K, Class L, Class M, Class N, Class O, Class P and Class
XW Certificates shall initially be issued as one or more Certificates registered
in the name of the Depository or its nominee and, except as provided in
subsection (c) below, transfer of such Certificates may not be registered by the
Certificate Registrar unless such transfer is to a successor Depository that
agrees to hold such Certificates for the respective Certificate Owners with
Ownership Interests therein. Such Certificate Owners shall hold and transfer
their respective Ownership Interests in and to such Certificates through the
book-entry facilities of the Depository and, except as provided in subsection
(c) below, shall not be entitled to fully registered, physical Certificates
("Definitive Certificates") in respect of such Ownership Interests. All
transfers by Certificate Owners of their respective Ownership Interests in the
Book-Entry Certificates shall be made in accordance with the procedures
established by the Depository Participant or brokerage firm representing each
such Certificate Owner (in addition to the procedures established under this
Agreement and, if applicable, those of Euroclear and Clearstream). Each
Depository Participant shall only transfer the Ownership Interests in the
Book-Entry Certificates of Certificate Owners it represents or of brokerage
firms for which it acts as agent in accordance with the Depository's normal
procedures. Neither the Certificate Registrar nor the Trustee shall have any
responsibility to monitor or restrict the transfer of Ownership Interests in
Certificates through the book-entry facilities of the Depository, Euroclear or
Clearstream.
(b) The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the REMIC Administrator and the Certificate Registrar may for all
purposes, including the making of payments due on the Book-Entry Certificates,
deal with the Depository as the authorized representative of the Certificate
Owners with respect to such Certificates for the purposes of exercising the
rights of Certificateholders hereunder. The rights of Certificate Owners with
respect to the Book-Entry Certificates shall be limited to those established by
law and agreements between such Certificate Owners and the Depository
Participants and brokerage firms representing such Certificate Owners. Multiple
requests and directions from, and votes of, the Depository as Holder of the
Book-Entry Certificates with respect to any particular matter shall not be
deemed inconsistent if they are made with respect to different Certificate
Owners. The Trustee may establish a reasonable record date in connection with
solicitations of consents from or voting by Certificateholders and shall give
notice to the Depository of such record date. If any party hereto requests from
the Depository a list of the Depository Participants in respect of any Class or
Classes of the Book-Entry Certificates, the cost thereof shall be borne by the
party on whose behalf such request is made (but in no event shall any such cost
be borne by the Trustee).
(c) If (i)(A) the Depositor advises the Trustee and the Certificate
Registrar in writing that the Depository is no longer willing or able to
properly discharge its responsibilities with respect to any Class of the
Book-Entry Certificates, and (B) the Depositor is unable to locate a qualified
successor, or (ii) the Depositor notifies the Trustee, the Certificate Registrar
and DTC of its intent to terminate the book-entry system through DTC and, upon
receipt of notice of such intent from DTC, the Depository Participants holding
beneficial interests in the Book-Entry Certificates agree to initiate such
termination. Upon surrender to the Certificate Registrar of any Class of the
Book-Entry Certificates by the Depository, accompanied by registration
instructions for registration of transfer, the Trustee shall execute, and the
Certificate Registrar shall authenticate and deliver, the appropriate Definitive
Certificates to the Certificate Owners identified in such instructions. None of
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator or the Certificate Registrar shall be liable for any delay in
delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions.
(d) The Book-Entry Certificates (i) shall be delivered by the
Certificate Registrar to the Depository, or pursuant to the Depository's
instructions, and shall be registered in the name of Cede & Co. and (ii) shall
bear a legend substantially to the following effect:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO
THE CERTIFICATE REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
The Book-Entry Certificates may be deposited with such other
Depository as the Certificate Registrar may from time to time designate, and
shall bear such legend as may be appropriate.
(e) Upon acceptance for exchange or transfer of a beneficial
interest in a Book-Entry Certificate for a Definitive Certificate, as provided
herein, the Certificate Registrar shall endorse on a schedule affixed to the
related Book-Entry Certificate (or on a continuation of such schedule affixed to
such Book-Entry Certificate and made a part thereof) an appropriate notation
evidencing the date of such exchange or transfer and a decrease in the
Denomination of such Book-Entry Certificate equal to the Denomination of such
Definitive Certificate issued in exchange therefor or upon transfer thereof.
(f) If a Holder of a Definitive Certificate wishes at any time to
transfer such Certificate to a Person who wishes to take delivery thereof in the
form of a beneficial interest in the Book-Entry Certificate, such transfer may
be effected only in accordance with Depository Rules and this Section 5.03(f).
Upon receipt by the Certificate Registrar at the Certificate Registrar's office
of (i) the Definitive Certificate to be transferred with an assignment and
transfer pursuant to this Section 5.03(f), (ii) written instructions given in
accordance with Depository Rules directing the Certificate Registrar to credit
or cause to be credited to another account a beneficial interest in the related
Book-Entry Certificate, in an amount equal to the Denomination of the Definitive
Certificate to be so transferred, (iii) a written order given in accordance with
the Depository Rules containing information regarding the account to be credited
with such beneficial interest, (iv) if the affected Certificate is a
Non-Registered Certificate an Investment Representation Letter from the
transferee to the effect that such transferee is a Qualified Institutional
Buyer, and (v) if delivery is to be taken in the form of a beneficial interest
in the Regulation S Global Certificate, a Regulation S Certificate, the
Certificate Registrar shall cancel such Definitive Certificate, execute and
deliver a new Definitive Certificate for the Denomination of the Definitive
Certificate not so transferred, registered in the name of the Holder or the
Holder's transferee (as instructed by the Holder), and the Certificate Registrar
shall instruct the Depository or the custodian holding such Book-Entry
Certificate on behalf of the Depository to increase the Denomination of the
related Book-Entry Certificate by the Denomination of the Definitive Certificate
to be so transferred, and to credit or cause to be credited to the account of
the Person specified in such instructions a corresponding Denomination of such
Book-Entry Certificate.
Each Regulation S Certificate shall include a certification to the
effect that: (i) (1) the offer of the Certificates was not made to a person in
the United States; and (2) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or 904(b) of Regulation S, as
applicable, and the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; or (ii) with respect to
transfers made in reliance on Rule 144 under the Securities Act, that the
Certificates being transferred are not "restricted securities" as defined in
Rule 144 under the Securities Act.
(g) The Certificates initially sold in offshore transactions in
reliance on Regulation S shall be represented by a single Regulation S Global
Certificate for each such Class in fully registered form without interest
coupons, which will be deposited with the Trustee and registered in the name of
Cede & Co. as nominee of DTC. Beneficial interests in each Regulation S Global
Certificate may be held only through Euroclear or Clearstream.
No interest in the Regulation S Global Certificates may be held by
or transferred to a U.S. Person (as defined in Regulation S) except for
exchanges for a beneficial interest in a Domestic Global Certificate or a
Definitive Certificate as described in Section 5.02(m). Any beneficial interest
in a Regulation S Global Certificate that is transferred to a U.S. Person that
is an Institutional Accredited Investor (that is not a Qualified Institutional
Buyer) is required to be delivered in the form of a Definitive Certificate and
shall cease to be an interest in such Regulation S Global Certificate and,
thereafter, will be subject to all transfer restrictions and other procedures
applicable to Certificates in definitive form described in Section 5.03.
Notwithstanding the foregoing, no transfer of a beneficial interest in a
Regulation S Global Certificate to a Definitive Certificate pursuant to this
Section 5.03 shall be made prior to the Release Date. Certificates evidenced by
Regulation S Global Certificates shall be subject to certain restrictions on
transfer as set forth in Section 5.02 and shall bear a legend regarding such
restrictions described herein.
Section 5.04 Mutilated, Destroyed, Lost or Stolen Certificates.
--------------------------------------------------
If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate, and (ii) there is delivered
to the Trustee and the Certificate Registrar such security or indemnity as may
reasonably be required by them to save each of them harmless, then, in the
absence of actual notice to the Trustee or the Certificate Registrar that such
Certificate has been acquired by a bona fide purchaser, the Trustee shall
execute and the Certificate Registrar shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of the same Class and like Percentage Interest.
Upon the issuance of any new Certificate under this Section 5.04, the Trustee
and the Certificate Registrar may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee
and the Certificate Registrar) connected therewith. Any replacement Certificate
issued pursuant to this Section 5.04 shall constitute complete and indefeasible
evidence of ownership in the applicable REMIC created hereunder, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
Section 5.05 Persons Deemed Owners.
----------------------
Prior to due presentment for registration of transfer, the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the person in whose name any Certificate is registered as the owner of such
Certificate for the purpose of receiving distributions pursuant to Section 4.01
and for all other purposes whatsoever, and none of the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the REMIC Administrator, the
Certificate Registrar or any agent of any of them shall be affected by notice to
the contrary.
Section 5.06 Certification by Certificate Owners.
------------------------------------
(a) Each Certificate Owner is hereby deemed by virtue of its
acquisition of an Ownership Interest in the Book-Entry Certificates to agree to
comply with the applicable transfer requirements of Sections 5.02(b) and
5.02(c).
(b) To the extent that under the terms of this Agreement, it is
necessary to determine whether any Person is a Certificate Owner, the Trustee
shall make such determination based on a certificate of such Person that shall
specify, in reasonable detail satisfactory to the Trustee, the Class and
Certificate Principal Balance or Certificate Notional Amount, as the case may
be, of the Book-Entry Certificate beneficially owned, the value of such Person's
interest in such Certificate and any intermediaries through which such Person's
Ownership Interest in such Book-Entry Certificate is held; provided, however,
that the Trustee shall not knowingly recognize such Person as a Certificate
Owner if such Person, to the knowledge of a Responsible Officer of the Trustee,
acquired its Ownership Interest in a Book-Entry Certificate in violation of
Section 5.02(b) and/or Section 5.02(c), or if such Person's certification that
it is a Certificate Owner is in direct conflict with information obtained by the
Trustee from the Depository, Depository Participants, and/or indirect
participating brokerage firms for which a Depository Participant acts as agent,
with respect to the identity of a Certificate Owner. The Trustee shall exercise
its reasonable discretion in making any determination under this Section 5.06(b)
and shall afford any Person providing information with respect to its beneficial
ownership of any Certificates an opportunity to resolve any discrepancies
between the information provided and any other information available to the
Trustee.
Section 5.07 Regarding the Identification of Certain
---------------------------------------
Certificateholders.
-------------------
(a) For purposes of determining the identity of the Holders of the
Non-Registered Certificates (except a Class V, Class R-I or Class R-II
Certificate) to whom certain reports and other information are required to be
delivered hereunder, the Trustee and the Master Servicer may rely, with respect
to any such Certificates outstanding in book-entry form, on a certification,
given to the Trustee and provided to the Master Servicer, by any Person that
such person is such a holder entitled to receive such reports or information
hereunder. With respect to the Registered Certificates and the Class V, Class
R-I and Class R-II Certificates, from time to time upon the request of the
Master Servicer, the Trustee shall provide the Master Servicer with a list of
the Certificateholders recorded in the Certificate Register.
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER, THE SPECIAL SERVICER AND THE REMIC
ADMINISTRATOR
Section 6.01 Liability of the Depositor, the Master Servicer, the
----------------------------------------------------
Special Servicer and the REMIC Administrator.
---------------------------------------------
The Depositor, the Master Servicer, the Special Servicer and the
REMIC Administrator shall be liable in accordance herewith only to the extent of
the respective obligations specifically imposed upon and undertaken by the
Depositor, the Master Servicer, the Special Servicer and the REMIC Administrator
herein.
Section 6.02 Merger, Consolidation or Conversion of the Depositor,
-----------------------------------------------------
the Master Servicer, the Special Servicer or the REMIC Administrator.
---------------------------------------------------------------------
(a) Subject to the following paragraph, the Depositor, the Master
Servicer, the Special Servicer and the REMIC Administrator each will keep in
full effect its existence, rights and franchises as a corporation or other
business organization under the laws of the jurisdiction of its organization,
and each will obtain and preserve its qualification to do business as a foreign
corporation or otherwise in each jurisdiction in which such qualification is or
shall be necessary to protect the validity and enforceability of this Agreement,
the Certificates or any of the Mortgage Loans and to perform its respective
duties under this Agreement.
(b) The Depositor, the Master Servicer, the Special Servicer and the
REMIC Administrator each may be merged or consolidated with or into any Person,
or transfer all or substantially all of its assets (which, as to the Master
Servicer and the Special Servicer, may be limited to all or substantially all of
its assets relating to the business of mortgage loan servicing) to any Person,
in which case any Person resulting from any merger or consolidation to which the
Depositor, the Master Servicer, the Special Servicer or the REMIC Administrator
shall be a party, or any Person succeeding to the business of the Depositor, the
Master Servicer, the Special Servicer or the REMIC Administrator, shall be the
successor of the Depositor, the Master Servicer, the Special Servicer or the
REMIC Administrator, as the case may be, hereunder, without the execution or
filing of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding; provided, however, that no
successor or surviving Person shall succeed to the rights of the Master Servicer
or the Special Servicer, unless such succession will not result in any
downgrade, qualification (if applicable) or withdrawal of the rating then
assigned by any Rating Agency to any Class of Certificates (as confirmed in
writing).
In accordance with Section 11.02, The Master Servicer and the
Special Servicer and such successor or surviving Person shall notify the
Depositor and the Trustee of any such merger, conversion or consolidation at
least two Business Days prior to the effective date thereof and shall provide
the Depositor and the Trustee with all information reasonably requested by the
Depositor to comply with its reporting obligation under Item 6.02 of Form 8-K
not later than the effective date of such merger, conversion or consolidation.
Section 6.03 Limitation on Liability of the Depositor, the Master
----------------------------------------------------
Servicer, the Special Servicer, the REMIC Administrator and Others.
-------------------------------------------------------------------
(a) None of the Depositor, the Master Servicer, the Special
Servicer, the REMIC Administrator or any director, officer, employee or agent of
any of the foregoing shall be under any liability to the Trust, the
Certificateholders or the One Stamford Forum Note B Holder for any action taken,
or not taken, in good faith pursuant to this Agreement, or for errors in
judgment; provided, however, that this provision shall not protect the
Depositor, the Master Servicer, the Special Servicer, the REMIC Administrator or
any such other Person against any breach of a representation or warranty made
herein, or against any expense or liability specifically required to be borne
thereby pursuant to the terms hereof, or against any liability that would
otherwise be imposed by reason of willful misfeasance, bad faith or negligence
in the performance of obligations or duties hereunder, or by reason of negligent
or reckless disregard of such obligations and duties. The Depositor, the Master
Servicer, the Special Servicer, the REMIC Administrator and any director,
manager, member, officer, employee or agent (including Sub-Servicers) of any of
the foregoing may rely in good faith on any document of any kind that, prima
facie, is properly executed and submitted by any Person respecting any matters
arising hereunder. The Depositor, the Master Servicer, the Special Servicer, the
REMIC Administrator and any director, manager, member, officer, employee or
agent (including Sub-Servicers) of any of the foregoing shall be indemnified and
held harmless by the Trust against any loss, liability or expense, including
reasonable attorneys' fees, expenses of counsel and expenses of litigation,
incurred in connection with any claims or legal action relating to this
Agreement, the Certificates or any asset of the Trust, other than any loss,
liability or expense: (i) specifically required to be borne by such Person
pursuant to the terms hereof, including, without limitation, Section 10.01(h);
or (ii) that was incurred in connection with claims against such party resulting
from (A) any breach of a representation or warranty made herein by such party,
(B) willful misfeasance, bad faith, recklessness or negligence in the
performance of obligations or duties hereunder by such party, or from negligent
or reckless disregard of such obligations or duties, or (C) any violation by
such party of any state or federal securities law. None of the Depositor, the
Master Servicer, the Special Servicer or the REMIC Administrator shall be under
any obligation to appear in, prosecute or defend any legal action unless such
action is related to its respective duties under this Agreement and, except in
the case of a legal action contemplated by Section 3.22, in its opinion does not
involve it in any ultimate expense or liability; provided, however, that the
Depositor, the Master Servicer, the Special Servicer or the REMIC Administrator
may in its discretion undertake any such action that it may deem necessary or
desirable with respect to the enforcement and/or protection of the rights and
duties of the parties hereto and the interests of the Certificateholders, or if
the Serviced Whole Loan is affected, the interests of the Certificateholders and
the One Stamford Forum Note B Holder (as a collective whole taking into account
the subordination of the One Stamford Forum Note B); provided, however, that if
the Serviced Whole Loan and/or the One Stamford Forum Note B Holder is involved,
such expenses, costs and liabilities shall be payable out of the Serviced Whole
Loan Custodial Account and shall also be payable out of the Certificate Account
if amounts on deposit in the Serviced Whole Loan Custodial Account are
insufficient therefor hereunder and (i) so long as such expenses, costs and
liabilities do not relate solely to the One Stamford Forum Note B or (ii) if
such expenses, costs and liabilities relate solely to the One Stamford Forum
Note B, only to the extent of deposits in the Certificate Account related
directly to the Serviced Whole Loan. In such event, the legal expenses and costs
of such action, and any liability resulting therefrom, shall be expenses, costs
and liabilities of the Trust, and the Depositor, the Master Servicer, the
Special Servicer and the REMIC Administrator each shall be entitled to the
direct payment of such expenses or to be reimbursed therefor from the
Certificate Account as provided in Section 3.05(a) (or, if and to the extent the
matter relates solely to the One Stamford Forum Note B, out of the Serviced
Whole Loan Custodial Account and out of the Certificate Account to the extent of
deposits therein related directly to the Serviced Whole Loan). For the avoidance
of doubt, such expenses, costs and liabilities shall not be deemed to relate
solely to the One Stamford Forum Note B for the sole reason that the related
action was instituted by or against the One Stamford Forum Note B Holder.
Section 6.04 Master Servicer, Special Servicer and REMIC
-------------------------------------------
Administrator Not to Resign.
----------------------------
None of the Master Servicer, the Special Servicer or the REMIC
Administrator shall be permitted to resign from the obligations and duties
hereby imposed on it, except (i) upon the appointment of, and the acceptance of
such appointment by, a successor thereto that is reasonably acceptable to the
Trustee and the Directing Certificateholder and the receipt by the Trustee of
written confirmation from each and every Rating Agency to the effect that such
resignation and appointment will not result in the downgrade, qualification (if
applicable) or withdrawal of any rating then assigned by such Rating Agency to
any Class of Certificates or (ii) upon determination that such obligations and
duties hereunder are no longer permissible under applicable law or are in
material conflict by reason of applicable law with any other activities carried
on by it, the other activities of the Master Servicer, Special Servicer or REMIC
Administrator, as the case may be, so causing such a conflict being of a type
and nature carried on by the Master Servicer, Special Servicer or REMIC
Administrator, as the case may be, at the date of this Agreement. Any such
determination of the nature described in clause (ii) of the preceding sentence
permitting the resignation of the Master Servicer, the Special Servicer or the
REMIC Administrator, as the case may be, shall be evidenced by an Opinion of
Counsel to such effect, which shall be rendered by Independent counsel, be
addressed and delivered to the Trustee and the Rating Agencies and be paid for
by the resigning party. No such resignation for either reason shall become
effective until the Trustee or other successor shall have assumed the
responsibilities and obligations of the resigning party hereunder. All costs and
expenses of the Trustee and the Trust (including, without limitation, any costs
or expenses of any party hereto reimbursable out of the Trust Fund) in
connection with any such resignation (including, without limitation, any
requisite transfer of servicing) shall be paid for, as incurred, by the
resigning party.
Consistent with the foregoing, none of the Master Servicer, the
Special Servicer or the REMIC Administrator shall be permitted, except as
expressly provided herein, to assign or transfer any of its rights, benefits or
privileges hereunder to any other Person, or delegate to or subcontract with, or
authorize or appoint any other Person to perform any of the duties, covenants or
obligations to be performed by it hereunder. If, pursuant to any provision
hereof, the duties of the Master Servicer, the Special Servicer or the REMIC
Administrator are transferred to a successor thereto, then, subject to Section
3.11(a) and Section 3.22, the entire amount of compensation payable to the
Master Servicer, the Special Servicer or the REMIC Administrator, as the case
may be, pursuant hereto shall thereafter be payable to such successor.
Section 6.05 Rights of the Depositor and the Trustee in Respect of
-----------------------------------------------------
the Master Servicer, the Special Servicer and the REMIC Administrator.
----------------------------------------------------------------------
The Master Servicer, the Special Servicer and the REMIC
Administrator each shall afford the Depositor and the Trustee, upon reasonable
notice, during normal business hours access to all records maintained by the
Master Servicer, the Special Servicer or the REMIC Administrator, as the case
may be, in respect of its rights and obligations hereunder and access to such of
its officers as are responsible for such obligations. Upon reasonable request,
the Master Servicer, the Special Servicer and the REMIC Administrator each shall
furnish the Depositor and the Trustee with its most recent financial statements,
or in the case of the Special Servicer, publicly available financial statements
of its corporate parent, and such other publicly available information directly
related to the servicing of the Loans or to its ability to perform its
obligations hereunder as it possesses, and that it is not prohibited by law or,
to the extent applicable, binding obligations to third parties with respect to
confidentiality from disclosing, regarding its business, affairs, property and
condition, financial or otherwise; provided that neither the Depositor nor the
Trustee may disclose the contents of any information that is not available
publicly to non-affiliated third parties (other than their duly authorized
representatives, which include without limitation attorneys and/or accountants)
unless the Depositor or the Trustee, as applicable, is required to do so under
applicable securities law or is compelled to do so as a matter of law. The
Depositor may, but is not obligated to, enforce the obligations of the Master
Servicer, the Special Servicer and the REMIC Administrator hereunder and may,
but is not obligated to, perform, or cause a designee to perform, any defaulted
obligation of the Master Servicer, the Special Servicer or the REMIC
Administrator hereunder or, in connection with a default thereby, exercise the
rights of the Master Servicer, the Special Servicer or the REMIC Administrator
hereunder; provided, however, that none of the Master Servicer, the Special
Servicer or the REMIC Administrator shall be relieved of any of its obligations
hereunder by virtue of such performance by the Depositor or its designee. The
Depositor shall not have any responsibility or liability for any action or
failure to act by the Master Servicer, the Special Servicer or the REMIC
Administrator and is not obligated to supervise the performance of the Master
Servicer, the Special Servicer or the REMIC Administrator under this Agreement
or otherwise.
ARTICLE VII
DEFAULT
Section 7.01 Events of Default.
------------------
(a) "Event of Default", wherever used herein, unless the context
otherwise requires, means any one of the following events:
(i) any failure by the Master Servicer (A) to deposit into the
Certificate Account or the Serviced Whole Loan Custodial Account any
amount required to be so deposited under this Agreement that continues
unremedied for three Business Days following the date on which such
deposit was first required to be made, but in no event later than the
Master Servicer Remittance Date before the related Distribution Date, or
(B) to deposit into, or to remit to the Trustee for deposit into, the
Distribution Account on any Master Servicer Remittance Date, the full
amount of any Master Servicer Remittance Amount and Withheld Amounts,
respectively, required to be so deposited or remitted under this Agreement
on such date, or (C) any failure by the Master Servicer to remit to the
One Stamford Forum Note B Holder, as and when required by this Agreement
or any related Intercreditor Agreement, any amount required to be so
remitted; or
(ii) any failure by the Special Servicer to deposit into, or to
remit to the Master Servicer for deposit into, the Certificate Account or
the Serviced Whole Loan Custodial Account or the applicable REO Account
any amount required to be so deposited or remitted under this Agreement
that continues unremedied for two Business Days following the date on
which such deposit or remittance was first required to be made, but in no
event later than two Business Days before the related Distribution Date;
or
(iii) any failure by the Master Servicer to remit to the Trustee for
deposit into the Distribution Account, on any Master Servicer Remittance
Date, the full amount of P&I Advances required to be made on such date
unless wired by 10:00 a.m. on the Distribution Date; provided, however,
that if the Master Servicer fails to make any deposit contemplated by this
Section 7.01(a)(iii), including any P&I Advance, which deposit is required
to be made by the Master Servicer on any Master Servicer Remittance Date
(without regard to any grace period), then the Master Servicer shall pay
to the Trustee, for the account of the Trustee, interest on such late
remittance at the Reimbursement Rate from and including such Master
Servicer Remittance Date to but excluding the related Distribution Date;
or
(iv) any failure by the Master Servicer to timely make any Servicing
Advance required to be made by it pursuant to this Agreement, which
failure continues unremedied for a period of three Business Days following
the date on which notice shall have been given to the Master Servicer by
the Trustee or by any other party to this Agreement, as provided in
Section 3.11(f); or
(v) any failure by the Special Servicer to timely direct the Master
Servicer to make any Servicing Advance (including any Emergency Advance)
required to be made by the Master Servicer at its direction pursuant to
this Agreement, which failure is not remedied by providing direction to
the Master Servicer within three Business Days following the date on which
notice has been given to the Special Servicer by the Trustee as provided
in Section 3.19(d); or
(vi) any failure on the part of the Master Servicer or the Special
Servicer duly to observe or perform in any material respect any other of
the covenants or agreements thereof contained in this Agreement, which
failure continues unremedied for a period of 30 days after the date on
which written notice of such failure, requiring the same to be remedied,
shall have been given to the Master Servicer or the Special Servicer, as
the case may be, by any other party hereto, or to the Master Servicer or
the Special Servicer, as the case may be, with a copy to each other party
hereto, by the Holders of Certificates entitled to at least 25% of the
Voting Rights; provided, however, that if such covenant or agreement is
capable of being cured and the Master Servicer or Special Servicer, as
applicable, is diligently pursuing such cure, such 30-day period shall be
extended for an additional 60 days; or
(vii) any failure on the part of the REMIC Administrator duly to
observe or perform in any material respect any of the covenants or
agreements thereof contained in this Agreement, which failure continues
unremedied for a period of 30 days after the date on which written notice
of such failure, requiring the same to be remedied, shall have been given
to the REMIC Administrator by any other party hereto, or to the REMIC
Administrator, with a copy to each other party hereto, by the Holders of
Certificates entitled to at least 25% of the Voting Rights; provided,
however, that if such covenant or agreement is capable of being cured and
the REMIC Administrator is diligently pursuing such cure, such 30-day
period shall be extended for an additional 60 days; or
(viii) any breach on the part of the Master Servicer, the Special
Servicer or the REMIC Administrator of any representation or warranty
thereof contained in this Agreement that materially and adversely affects
the interests of any Class of Certificateholders and that continues
unremedied for a period of 30 days after the date on which notice of such
breach, requiring the same to be remedied, shall have been given to the
Master Servicer, the Special Servicer or the REMIC Administrator, as the
case may be, by any other party hereto, or to the Master Servicer, the
Special Servicer or the REMIC Administrator, as the case may be, with a
copy to each other party hereto, by the Holders of Certificates entitled
to at least 25% of the Voting Rights; provided, however, that if such
representation or warranty is capable of being cured and the Master
Servicer or Special Servicer, as applicable, is diligently pursuing such
cure, such 30-day period shall be extended for an additional 60 days; or
(ix) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law
for the appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings, or for the
winding up or liquidation of its affairs, shall have been entered against
the Master Servicer, the Special Servicer or the REMIC Administrator and
such decree or order shall have remained in force undischarged or unstayed
for a period of 60 days; or
(x) the Master Servicer, the Special Servicer or the REMIC
Administrator shall consent to the appointment of a conservator, receiver,
liquidator, trustee or similar official in any bankruptcy, insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings of or relating to it or of or relating to all or substantially
all of its property; or
(xi) the Master Servicer, the Special Servicer or the REMIC
Administrator shall admit in writing its inability to pay its debts
generally as they become due, file a petition to take advantage of any
applicable bankruptcy, insolvency or reorganization statute, make an
assignment for the benefit of its creditors, voluntarily suspend payment
of its obligations, or take any corporate action in furtherance of the
foregoing; or
(xii) Fitch provides notice to the Master Servicer or the Special
Servicer, as applicable, to the effect that the rating or ratings on one
or more Classes of Certificates will be the subject of a downgrade or
withdrawal, citing servicing concerns relating to the Master Servicer or
the Special Servicer, as the case may be, as the sole or a material factor
in such action; provided, however, that the Master Servicer or Special
Servicer, as applicable shall have 60 days to resolve such matters to the
satisfaction of Fitch (or such longer time period as may be agreed in
writing by Fitch) prior to the downgrade of any Class of Certificates and
such notice from Fitch shall not be deemed to be an Event of Default;
(xiii) either the Master Servicer or the Special Servicer is no
longer listed on S&P's Select Servicer List as a U.S. Commercial Mortgage
Master Servicer or a U.S. Commercial Mortgage Special Servicer, as
applicable, and is not relisted thereon within 60 days; or
(xiv) the Master Servicer shall no longer be rated "CMS3" or higher
by Fitch or the Special Servicer shall no longer be rated "CSS3" or higher
by Fitch, and, in each case, that rating is not restored within 60 days
after the subject downgrade or withdrawal.
Each Event of Default listed above as items (iv) through (xiv) above shall
constitute an Event of Default only with respect to the relevant party; provided
that if a single entity acts or any two or more Affiliates act as Master
Servicer, Special Servicer and REMIC Administrator, or in any two or more of the
foregoing capacities, an Event of Default in one capacity (other than an event
described in clauses (xii), (xiii) or (xiv) above) will constitute an Event of
Default in each such capacity.
(b) If any Event of Default with respect to the Master Servicer or
the Special Servicer (in either case, for purposes of this Section 7.01(b), the
"Defaulting Party") shall occur and be continuing, then, and in each and every
such case, so long as the Event of Default shall not have been remedied, the
Depositor or the Trustee may, and (other than with respect to the Events of
Default listed in clauses (xii) and (xiv) above) at the written direction of the
Holders of Certificates entitled to at least 51% of the Voting Rights, or if the
relevant Event of Default is the one described in clauses (x) and (xi) of above,
the Trustee shall, terminate, by notice in writing to the Defaulting Party (with
a copy of such notice to each other party hereto), all of the rights and
obligations (subject to Section 3.11 and Section 6.03, accruing from and after
such notice) of the Defaulting Party under this Agreement and in and to the
Loans and the proceeds thereof (other than as a Holder of a Certificate or the
One Stamford Forum Note B). With respect to each of the Event of Defaults listed
in clauses (xii) and (xiv) above, the Trustee shall provide written notice of
such Event of Default to each Certificateholder and request written direction of
such Certificateholders whether they desire to terminate the Defaulting Party;
if no such direction is received from the Directing Certificateholder or Holders
of Certificates entitled to vote at least 51% of the Voting Rights within ten
Business Days after delivery of such notice by the Trustee, and the Trustee has
not elected pursuant to the preceding sentence to terminate the Defaulting
Party, the Defaulting Party will not be terminated by reason of such Event of
Default. From and after the receipt by the Defaulting Party of such written
notice, all authority and power of the Defaulting Party under this Agreement,
whether with respect to the Certificates (other than as a Holder of any
Certificate) or the Loans or otherwise, shall pass to and be vested in the
Trustee pursuant to and under this Section, and, without limitation, the Trustee
is hereby authorized and empowered to execute and deliver, on behalf of and at
the expense of the Defaulting Party, as attorney-in-fact or otherwise, any and
all documents and other instruments, and to do or accomplish all other acts or
things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement or assignment of
the Loans and related documents, or otherwise. The Master Servicer and the
Special Servicer each agree that, if it is terminated pursuant to this Section
7.01(b), it shall promptly (and in any event no later than ten Business Days
subsequent to its receipt of the notice of termination) provide the Trustee with
all documents and records reasonably requested thereby to enable the Trustee to
assume the Master Servicer's or Special Servicer's, as the case may be,
functions hereunder, and shall cooperate with the Trustee in effecting the
termination of the Master Servicer's or Special Servicer's, as the case may be,
responsibilities and rights hereunder, including, without limitation, the
transfer within two Business Days to the Trustee for administration by it of all
cash amounts that shall at the time be or should have been credited by the
Master Servicer to the Certificate Account, the Distribution Account, any
Servicing Account or any Reserve Account (if it is the Defaulting Party) or by
the Special Servicer to the REO Account, the Certificate Account, any Servicing
Account or any Reserve Account (if it is the Defaulting Party) or thereafter be
received with respect to the Loans and any REO Properties (provided, however,
that the Master Servicer and the Special Servicer each shall, if terminated
pursuant to this Section 7.01(b) or Section 3.23, continue to be obligated for
or entitled to receive all amounts accrued or owing by or to it under this
Agreement on or prior to the date of such termination, whether in respect of
Advances or otherwise, and it and its directors, officers, employees and agents
shall continue to be entitled to the benefits of Section 6.03 notwithstanding
any such termination). All costs and expenses of the Trustee and the Trust
(including, without limitation, any costs and expenses of any party hereto
reimbursable out of the Trust Fund) in connection with the termination of the
Master Servicer or Special Servicer, as applicable, under this Section 7.01(b)
(including, without limitation, the requisite transfer of servicing) shall be
paid for, as incurred, by the Defaulting Party.
(c) If any Event of Default with respect to the REMIC Administrator
shall occur and be continuing, then, and in each and every such case, so long as
the Event of Default shall not have been remedied, the Depositor or the Trustee
may, and at the written direction of the Holders of Certificates entitled to at
least 51% of the Voting Rights, the Trustee (or, if the Trustee is also the
REMIC Administrator, the Master Servicer) shall, terminate, by notice in writing
to the REMIC Administrator (with a copy to each of the other parties hereto),
all of the rights and obligations of the REMIC Administrator under this
Agreement. From and after the receipt by the REMIC Administrator of such written
notice (or if the Trustee is also the REMIC Administrator, from and after such
time as another successor appointed as contemplated by Section 7.02 accepts such
appointment), all authority and power of the REMIC Administrator under this
Agreement shall pass to and be vested in the Trustee (or such other successor)
pursuant to and under this Section 7.01, and, without limitation, the Trustee
(or such other successor) is hereby authorized and empowered to execute and
deliver, on behalf of and at the expense of the REMIC Administrator, as
attorney-in-fact or otherwise, any and all documents and other instruments, and
to do or accomplish all other acts or things necessary or appropriate to effect
the purposes of such notice of termination. The REMIC Administrator agrees
promptly (and in any event no later than ten Business Days subsequent to its
receipt of the notice of the termination) to provide the Trustee (or, if the
Trustee is also the REMIC Administrator, such other successor appointed as
contemplated by Section 7.02) with all documents and records requested thereby
to enable the Trustee (or such other successor) to assume the REMIC
Administrator's functions hereunder, and to cooperate with the Trustee (or such
other successor) in effecting the termination of the REMIC Administrator's
responsibilities and rights hereunder (provided, however, that the REMIC
Administrator shall continue to be obligated for or entitled to receive all
amounts accrued or owing by or to it under this Agreement on or prior to the
date of such termination, and it and its directors, officers, employees and
agents shall continue to be entitled to the benefits of Section 6.03
notwithstanding any such termination).
(d) Notwithstanding Section 7.01(b), if the Master Servicer receives
a notice of termination under Section 7.01(b) solely due to an Event of Default
under Section 7.01(a)(xii), (xiii) or (xiv) and if the Master Servicer provides
the Trustee with the appropriate "request for proposal" materials within the
five Business Days after such termination, then such Master Servicer shall
continue to serve as Master Servicer, if requested to do so by the Trustee, and
the Trustee shall promptly thereafter (using such "request for proposal"
materials provided by the terminated Master Servicer) solicit good faith bids
for the rights to master service the Loans under this Agreement from at least
three Persons qualified to act as Master Servicer hereunder in accordance with
Section 6.02 and Section 7.02 for which the Trustee has received written
confirmation that the appointment of such person would not result in the
downgrade, withdrawal or qualification of a current rating on any of the
Certificates and that are reasonably acceptable to the Directing
Certificateholder (any such Person so qualified, a "Qualified Bidder") or, if
three Qualified Bidders cannot be located, then from as many Persons as the
Trustee can determine are Qualified Bidders; provided that, at the Trustee's
request, the terminated Master Servicer shall supply the Trustee with the names
of Persons from whom to solicit such bids; and provided, further, that the
Trustee shall not be responsible if less than three or no Qualified Bidders
submit bids for the right to master service the Loans under this Agreement. Any
"Qualified Bidder" referenced hereunder shall be reasonably acceptable to the
Directing Certificateholder. The bid proposal shall require any Successful
Bidder (as defined below), as a condition of such bid, to enter into this
Agreement as successor Master Servicer, and to agree to be bound by the terms
hereof, within 45 days after the termination of Master Servicer. The Master
Servicer shall continue to serve in such capacity hereunder until a successor
thereto is selected in accordance with this Section 7.01(d) or the expiration of
45 days after the Master Servicer's receipt of notice of termination, whichever
occurs first. The Trustee shall solicit bids (i) on the basis of such successor
Master Servicer retaining all Sub-Servicers to continue the primary servicing of
the Loans pursuant to the terms of the respective Sub-Servicing Agreements and
to enter into a Sub-Servicing Agreement with the terminated Master Servicer to
service each of the Loans not subject to a Sub-Servicing Agreement at a
servicing fee rate per annum equal to the Master Servicing Fee Rate minus 2.5
basis points per Loan serviced (each, a "Servicing-Retained Bid") and (ii) on
the basis of terminating each Sub-Servicing Agreement and Sub-Servicer that it
is permitted to terminate in accordance with Section 3.22 (each, a
"Servicing-Released Bid"). The Trustee shall select the Qualified Bidder with
the highest cash Servicing-Retained Bid (or, if none, the highest cash Servicing
Released Bid) (the "Successful Bidder") to act as successor Master Servicer
hereunder. The Trustee shall direct the Successful Bidder to enter into this
Agreement as successor Master Servicer pursuant to the terms hereof (and, if the
successful bid was a Servicing-Retained Bid, to enter into a Sub-Servicing
Agreement with the terminated Master Servicer as contemplated above), no later
than 45 days after the termination of the Master Servicer.
(e) Upon the assignment and acceptance of the master servicing
rights hereunder to and by the Successful Bidder, the Trustee shall remit or
cause to be remitted (i) if the successful bid was a Servicing-Retained Bid, to
the terminated Master Servicer the amount of such cash bid received from the
Successful Bidder (net of "out-of-pocket" expenses incurred in connection with
obtaining such bid and transferring servicing) and (ii) if the successful bid
was a Servicing-Released Bid, to the Master Servicer and each terminated
Sub-Servicer its respective Bid Allocation.
(f) If the Successful Bidder has not entered into this Agreement as
successor Master Servicer within 45 days after the Trustee was appointed as
successor Master Servicer or no Successful Bidder was identified within such
45-day period, the terminated Master Servicer shall reimburse the Trustee for
all reasonable "out-of-pocket" expenses incurred by the Trustee in connection
with such bid process and the Trustee shall have no further obligations under
this Section 7.01(f). The Trustee thereafter may act or may select a successor
to act as Master Servicer hereunder in accordance with Section 7.02.
Section 7.02 Trustee to Act; Appointment of Successor.
-----------------------------------------
On and after the time the Master Servicer, the Special Servicer or
the REMIC Administrator resigns pursuant to clause (ii) of the first sentence of
Section 6.04 or receives a notice of termination pursuant to Section 7.01, the
Trustee shall be the successor in all respects to the Master Servicer, the
Special Servicer or (unless it has also been acting as such) the REMIC
Administrator, as the case may be, in its capacity as such under this Agreement
and the transactions set forth or provided for herein and shall be subject to
all the responsibilities, duties and liabilities relating thereto and arising
thereafter placed on the Master Servicer, the Special Servicer or the REMIC
Administrator, as the case may be, by the terms and provisions hereof,
including, without limitation, if the Master Servicer is the resigning or
terminated party, the Master Servicer's obligation to make P&I Advances;
provided that any failure to perform such duties or responsibilities caused by
the Master Servicer's, the Special Servicer's or the REMIC Administrator's, as
the case may be, failure to cooperate or to provide information or monies
required by Section 7.01 shall not be considered a default by the Trustee
hereunder. Neither the Trustee nor any other successor shall be liable for any
of the representations and warranties of the resigning or terminated party or
for any losses incurred by the resigning or terminated party pursuant to Section
3.06 hereunder nor shall the Trustee nor any other successor be required to
purchase any Loan hereunder. As compensation therefor, the Trustee shall be
entitled to all fees and other compensation (subject to Section 3.11) that the
resigning or terminated party would have been entitled to for future services
rendered if the resigning or terminated party had continued to act hereunder.
Notwithstanding the above, the Trustee may, if it shall be unwilling to so act,
or shall, if it is unable to so act, or is not approved by each and every Rating
Agency as an acceptable master servicer or special servicer, as the case may be,
of commercial mortgage loans; or if the Directing Certificateholder or if the
Holders of Certificates entitled to at least 51% of the Voting Rights so request
in writing to the Trustee; or if the REMIC Administrator is the resigning or
terminated party and the Trustee had been acting in such capacity, promptly
appoint, or petition a court of competent jurisdiction to appoint, any
established and qualified institution as the successor to the Master Servicer,
the Special Servicer or the REMIC Administrator, as the case may be, hereunder
in the assumption of all or any part of the responsibilities, duties or
liabilities of the Master Servicer, the Special Servicer or the REMIC
Administrator, as the case may be, hereunder; provided, in the case of a
successor Master Servicer, such successor has been approved by the Directing
Certificateholder, which consent with respect to the Master Servicer shall not
be unreasonably withheld or delayed; provided that such appointment does not
result in the downgrading, qualification (if applicable) or withdrawal of any
rating then assigned by any Rating Agency to any Class of Certificates (as
evidenced by written confirmation thereof from each Rating Agency); provided
further that in the case of a resigning or terminated Special Servicer, such
appointment shall be subject to the rights of the Majority Certificateholder of
the Controlling Class to designate a successor pursuant to Section 3.23. No
appointment of a successor to the Master Servicer, the Special Servicer or the
REMIC Administrator hereunder shall be effective until the assumption of the
successor to such party of all its responsibilities, duties and liabilities
hereunder. Pending appointment of a successor to the Master Servicer, the
Special Servicer or the REMIC Administrator hereunder, the Trustee shall act in
such capacity as hereinabove provided. Notwithstanding the above, the Trustee
shall, if the Master Servicer is the resigning or terminated party and the
Trustee is prohibited by law or regulation from making P&I Advances, promptly
appoint any established mortgage loan servicing institution that has a net worth
of not less than $15,000,000 and is otherwise acceptable to each Rating Agency
(as evidenced by written confirmation therefrom to the effect that the
appointment of such institution would not cause the qualification, downgrading
or withdrawal of the then current rating on any Class of Certificates), as the
successor to the Master Servicer hereunder in the assumption of all or any part
of the responsibilities, duties or liabilities of the Master Servicer hereunder
(including, without limitation, the obligation to make P&I Advances), which
appointment will become effective immediately. Subject to Section 3.11 and in
connection with any such appointment and assumption described herein, the
Trustee may make such arrangements for the compensation of such successor out of
payments on or in respect of the Mortgage Loans or otherwise as it and such
successor shall agree; provided, however, that no such compensation shall be in
excess of that permitted the resigning or terminated party hereunder. The
Depositor, the Trustee, such successor and each other party hereto shall take
such action, consistent with this Agreement, as shall be necessary to effectuate
any such succession. Any costs and expenses associated with the transfer of the
foregoing functions under this Agreement (other than the set-up costs of the
successor) shall be borne by the predecessor Master Servicer, Special Servicer
or REMIC Administrator, as applicable, and, if not paid by such predecessor
Master Servicer, Special Servicer or REMIC Administrator within 30 days of its
receipt of an invoice therefor, shall be an expense of the Trust; provided that
such predecessor Master Servicer, Special Servicer or REMIC Administrator shall
reimburse the Trust for any such expense so incurred by the Trust; and provided,
further, that if the Trustee is directed to do so by the Directing
Certificateholder, the Trustee shall pursue any remedy against any party
obligated to make such reimbursement.
Section 7.03 Form 8-K Information; Notification to
-------------------------------------
Certificateholders.
-------------------
(a) The predecessor and successor Master Servicer shall each provide
the Depositor and the Trustee with all information required by the Depositor to
comply with its reporting obligation under Item 6.02 of Form 8-K not later than
the effective date of such appointment.
(b) Upon any resignation of the Master Servicer, the Special
Servicer or the REMIC Administrator pursuant to Section 6.04, any termination of
the Master Servicer, the Special Servicer or the REMIC Administrator pursuant to
Section 7.01 or any appointment of a successor to the Master Servicer, the
Special Servicer or the REMIC Administrator pursuant to Section 6.04 or Section
7.02, the Trustee shall give prompt written notice thereof to Certificateholders
at their respective addresses appearing in the Certificate Register.
(c) Not later than the later of (i) 60 days after the occurrence of
any event that constitutes or, with notice or lapse of time or both, would
constitute an Event of Default and (ii) five days after the Trustee has actual
knowledge, or would be deemed in accordance with Section 8.02(g) to have notice
of the occurrence of such an event, the Trustee shall transmit by mail to the
other non-defaulting parties hereto and all Certificateholders notice of such
occurrence, unless such default shall have been cured.
Section 7.04 Waiver of Events of Default.
----------------------------
The Holders entitled to at least 66-2/3% of the Voting Rights
allocated to each of the Classes of Certificates affected by any Event of
Default hereunder may waive such Event of Default, except that prior to any
waiver of an Event of Default arising from a failure to make P&I Advances, the
Trustee shall be reimbursed all amounts that it has advanced and for any costs
and expenses associated with any related Servicing Transfer Event. Upon any such
waiver of an Event of Default, such Event of Default shall cease to exist and
shall be deemed to have been remedied for every purpose hereunder. No such
waiver shall extend to any subsequent or other Event of Default or impair any
right consequent thereon except to the extent expressly so waived.
Notwithstanding any other provisions of this Agreement, for purposes of waiving
any Event of Default pursuant to this Section 7.04, Certificates registered in
the name of the Depositor or any Affiliate of the Depositor (provided that
neither the Depositor nor any Affiliate thereof is the party in respect of which
such Event of Default exists) shall be entitled to the same Voting Rights with
respect to the matters described above as they would if any other Person held
such Certificates.
Section 7.05 Additional Remedies of Trustee Upon Event of Default.
-----------------------------------------------------
During the continuance of any Event of Default, so long as such
Event of Default shall not have been remedied, the Trustee, in addition to the
rights specified in Section 7.01, shall have the right, in its own name and as
trustee of an express trust, to take all actions now or hereafter existing at
law, in equity or by statute to enforce its rights and remedies and to protect
the interests, and enforce the rights and remedies, of the Certificateholders
(including the institution and prosecution of all judicial, administrative and
other proceedings and the filings of proofs of claim and debt in connection
therewith). Except as otherwise expressly provided in this Agreement, no remedy
provided for by this Agreement shall be exclusive of any other remedy, and each
and every remedy shall be cumulative and in addition to any other remedy, and no
delay or omission to exercise any right or remedy shall impair any such right or
remedy or shall be deemed to be a waiver of any Event of Default.
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of Trustee.
------------------
(a) The Trustee, prior to the occurrence of an Event of Default
hereunder and after the curing or waiver of all such Events of Default and
defaults that may have occurred, undertakes to perform such duties and only such
duties as are specifically set forth in this Agreement; provided that it is
herein acknowledged and agreed that the Trustee is at all times acting in a
fiduciary capacity with respect to the Certificateholders. If an Event of
Default hereunder occurs and is continuing, the Trustee shall exercise such of
the rights and powers vested in it by this Agreement and applicable law, and use
the same degree of care and skill in their exercise as a prudent man or the
Trustee would exercise or use under the circumstances in the conduct of his or
its own affairs (whichever standard would be higher). Any permissive right of
the Trustee contained in this Agreement shall not be construed as a duty.
(b) The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee that are specifically required to be furnished pursuant to any
provision of this Agreement (other than the Mortgage Files, the review of which
is specifically governed by the terms of Article II), shall examine them to
determine whether they conform in form to the requirements of this Agreement. If
any such instrument is found not to so conform to the requirements of this
Agreement in a material manner, the Trustee shall take such action as it deems
appropriate to have the instrument corrected. The Trustee shall not be
responsible for, but may assume and rely upon, the accuracy and content of any
resolution, certificate, statement, opinion, report, document, order or other
instrument furnished by the Depositor, the Master Servicer, the Special Servicer
or the REMIC Administrator and accepted by the Trustee in good faith, pursuant
to this Agreement.
(c) No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct; provided, however, that:
(i) The duties and obligations of the Trustee shall be determined
solely by the express provisions of this Agreement, the Trustee shall not
be liable except for the performance of such duties and obligations as are
specifically set forth in this Agreement, no implied covenants or
obligations shall be read into this Agreement against the Trustee and, in
the absence of bad faith on the part of the Trustee, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon any certificates or opinions
furnished to the Trustee and conforming to the requirements of this
Agreement;
(ii) The Trustee shall not be personally liable for an error of
judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(iii) The Trustee shall not be personally liable with respect to any
action taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of Holders of Certificates entitled to at
least 25% (or, as to any particular matter, any higher percentage as may
be specifically provided for hereunder) of the Voting Rights relating to
the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon
the Trustee, under this Agreement.
(d) The Trustee hereby indemnifies and holds the Trust harmless for
all losses, liabilities and damages incurred by the Trust or the
Certificateholders by virtue of the Trustee's negligence or fraud.
Section 8.02 Certain Matters Affecting the Trustee.
--------------------------------------
Except as otherwise provided in Section 8.01:
(a) The Trustee may rely upon and shall be protected in acting or
refraining from acting upon any resolution, Officer's Certificate, certificate
of auditors or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, appraisal, bond or other paper or document
reasonably believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(b) The Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken or suffered or omitted by it
hereunder in good faith and in accordance therewith;
(c) The Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by this Agreement or to make any investigation of
matters arising hereunder or to institute, conduct or defend any litigation
hereunder or in relation hereto at the request, order or direction of any of the
Certificateholders, pursuant to the provisions of this Agreement, unless such
Certificateholders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities that may be incurred
therein or thereby; the Trustee shall not be required to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it; nothing contained herein shall, however, relieve the Trustee of the
obligation, upon the occurrence of an Event of Default hereunder that has not
been cured, to exercise such of the rights and powers vested in it by this
Agreement and to use the same degree of care and skill in their exercise as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs;
(d) The Trustee shall not be personally liable for any action
reasonably taken, suffered or omitted by it in good faith and believed by it to
be authorized or within the discretion or rights or powers conferred upon it by
this Agreement;
(e) Prior to the occurrence of an Event of Default hereunder, and
after the curing of all such Events of Default that may have occurred, the
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond or other paper or document,
unless requested in writing to do so by Holders of Certificates entitled to at
least 25% of the Voting Rights; provided, however, that if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely to
be incurred by it in the making of such investigation is, in the opinion of the
Trustee, not reasonably assured to the Trustee by the security afforded to it by
the terms of this Agreement, the Trustee may require reasonable indemnity
against such expense or liability as a condition to taking any such action;
(f) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys-in-fact, provided that the use of any such agent or attorney-in-fact
shall not relieve the Trustee from any of its obligations hereunder, and the
Trustee shall remain responsible for all acts and omissions of any such agent or
attorney-in-fact;
(g) For all purposes under this Agreement, the Trustee shall not be
deemed to have notice of any Event of Default hereunder unless a Responsible
Officer of the Trustee has actual knowledge thereof or unless written notice of
any event that is in fact such a default is received by the Trustee at the
Corporate Trust Office, and such notice references the Certificates or this
Agreement; and
(h) The Trustee shall not be responsible for any act or omission of
the Master Servicer, the Special Servicer or the REMIC Administrator (unless the
Trustee is acting as Master Servicer, Special Servicer or REMIC Administrator,
as the case may be) or for any act or omission of the Depositor or the Mortgage
Loan Seller.
Section 8.03 Trustee Not Liable for Validity or Sufficiency of
-------------------------------------------------
Certificates or Loans.
----------------------
The recitals contained herein and in the Certificates (other than
the representations and warranties of, and the other statements attributed to,
the Trustee in Article II and the certificate of authentication executed by the
Trustee as Certificate Registrar set forth on each outstanding Certificate)
shall be taken as the statements of the Depositor, the Master Servicer, the
Special Servicer or the REMIC Administrator, as the case may be, and the Trustee
assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Agreement (other than
as specifically set forth in Section 2.07) or of any Certificate (other than as
to the signature of the Trustee set forth thereon) or of any Loan or related
document. The Trustee shall not be accountable for the use or application by the
Depositor of any of the Certificates issued to it or of the proceeds of such
Certificates, or for the use or application of any funds paid to the Depositor
in respect of the assignment of the Mortgage Loans to the Trust, or any funds
deposited into or withdrawn from the Certificate Account, the Interest Reserve
Account or any other account by or on behalf of the Depositor, the Master
Servicer, the Special Servicer or the REMIC Administrator. The Trustee shall not
be responsible for the accuracy or content of any resolution, certificate,
statement, opinion, report, document, order or other instrument furnished by the
Depositor, the Master Servicer, the Special Servicer or the REMIC Administrator
and accepted by the Trustee, in good faith, pursuant to this Agreement.
Section 8.04 Trustee May Own Certificates.
-----------------------------
The Trustee, in its individual or any other capacity, and any agent
of the Trustee may become the owner or pledgee of Certificates with, except as
otherwise provided in the definition of Certificateholder, the same rights it
would have if it were not the Trustee or such agent, as the case may be.
Section 8.05 Fees of Trustee; Indemnification of Trustee.
--------------------------------------------
(a) The Trustee shall pay to itself on each Distribution Date,
pursuant to Section 3.05(b)(ii), from amounts on deposit in the Distribution
Account, an amount equal to the Trustee Fee for such Distribution Date and, to
the extent not previously received, for each prior Distribution Date.
(b) The Trustee and any director, officer, employee or agent of the
Trustee (whether in their Trustee capacity or individually), or Person, if any,
who controls the Trustee within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, shall be entitled to be
indemnified and held harmless by the Trust (to the extent of amounts on deposit
in the Certificate Account and the Distribution Account from time to time)
against any loss, liability or expense (including, without limitation, costs and
expenses of litigation, and of investigation, counsel fees, damages, judgments
and amounts paid in settlement) arising out of, or incurred in connection with,
any legal actions relating to the exercise and performance of any of the powers
and duties of the Trustee hereunder and any other "unanticipated expenses"
(similar to those defined in Treasury Regulations Section 1.860G-1(b)(3)(ii)) of
the Trustee; provided that the Trustee shall not be entitled to indemnification
pursuant to this Section 8.05(b) for (i) allocable overhead, (ii) expenses or
disbursements incurred or made by or on behalf of the Trustee in the normal
course of the Trustee's performing its routine duties in accordance with any of
the provisions hereof, (iii) any expense or liability specifically required to
be borne thereby pursuant to the terms hereof, or (iv) any loss, liability or
expense incurred by reason of willful misfeasance, bad faith or negligence in
the performance of the Trustee's obligations and duties hereunder, or by reason
of negligent disregard of such obligations or duties, or as may arise from a
breach of any representation, warranty or covenant of the Trustee made herein.
The provisions of this Section 8.05(b) shall (i) survive any resignation or
removal of the Trustee and appointment of a successor trustee and (ii) extend to
any other role that the Trustee may assume hereunder, including without
limitation REMIC Administrator, Custodian and/or Certificate Registrar.
Section 8.06 Eligibility Requirements for Trustee.
-------------------------------------
The Trustee hereunder shall at all times be a corporation, a trust
company, a bank or a banking association: (i) organized and doing business under
the laws of the United States of America or any State thereof or the District of
Columbia; (ii) authorized under such laws to exercise trust powers; (iii) having
a combined capital and surplus of at least $50,000,000; (iv) subject to
supervision or examination by federal or state authority; and (v) whose
long-term senior unsecured debt is rated not less than "AA-" by S&P (or "A+" by
S&P, if the Trustee's unsecured short-term debt is rated at least "A-1" by S&P)
and whose short-term unsecured debt obligations are rated not less than "F-1" by
Fitch (or, in the case of either Rating Agency, such other rating as each such
Rating Agency shall permit so long as it is accompanied by a statement in
writing that any of the then current ratings assigned by such Rating Agency to
the respective Classes of the Certificates would not be downgraded, qualified
(if applicable) or withdrawn as a result of such rating). If such corporation,
trust company, bank or banking association publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then, for the purposes of this Section 8.06,
the combined capital and surplus of such corporation, trust company, bank or
banking association shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. No Person shall
become a successor trustee hereunder if the succession of such Person would
result in a downgrade, qualification (if applicable) or withdrawal of any of the
ratings then assigned by the Rating Agencies to the Certificates. In case at any
time the Trustee shall cease to be eligible in accordance with the provisions of
this Section 8.06, the Trustee shall resign immediately in the manner and with
the effect specified in Section 8.07. The corporation, trust company, bank or
banking association serving as Trustee may have normal banking and trust
relationships with the Depositor, the Master Servicer, the Special Servicer, the
REMIC Administrator and their respective Affiliates.
Section 8.07 Resignation and Removal of the Trustee.
---------------------------------------
(a) The Trustee may at any time resign and be discharged from the
trusts hereby created by giving written notice thereof to the Depositor, the
Master Servicer, the Special Servicer, the REMIC Administrator and all
Certificateholders and the One Stamford Forum Note B Holder. Upon receiving such
notice of resignation, the Depositor shall promptly appoint a successor trustee
acceptable to the Master Servicer by written instrument, in duplicate, which
instrument shall be delivered to the resigning Trustee and to the successor
trustee. A copy of such instrument shall be delivered to the Master Servicer,
the Special Servicer, the REMIC Administrator and the Certificateholders by the
Depositor. If no successor trustee shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
(b) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 8.06 and shall fail to resign after
written request therefor by the Depositor or the Master Servicer, or if at any
time the Trustee shall become incapable of acting, or shall be adjudged bankrupt
or insolvent, or a receiver of the Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation, conservation or
liquidation, then the Depositor may remove the Trustee and appoint a successor
trustee acceptable to the Master Servicer by written instrument, in duplicate,
which instrument shall be delivered to the Trustee so removed and to the
successor trustee. A copy of such instrument shall be delivered to the Master
Servicer, the Special Servicer, the Directing Certificateholder, the One
Stamford Forum Note B Holder, the REMIC Administrator and the Certificateholders
by the Depositor.
(c) The Holders of Certificates entitled to at least 33-1/3% of the
Voting Rights may at any time remove the Trustee and appoint a successor trustee
by written instrument or instruments, in triplicate, signed by such Holders or
their attorneys-in-fact duly authorized, one complete set of which instruments
shall be delivered to the Master Servicer, one complete set to the Trustee so
removed and one complete set to the successor so appointed; provided that the
Master Servicer, the One Stamford Forum Note B Holder, the Depositor and the
remaining Certificateholders shall have been notified; and provided further that
other Holders of the Certificates entitled to a greater percentage of the Voting
Rights shall not have objected to such removal in writing to the Master Servicer
and the Depositor within 30 days of their receipt of notice thereof. A copy of
such instrument shall be delivered to the Depositor, the Special Servicer, the
REMIC Administrator and the remaining Certificateholders by the Master Servicer.
If the Trustee is removed under this Agreement without cause, all reasonable
costs and expenses incurred by the Trustee (to the extent not duplicative of any
reimbursement provided for under Section 8.08(a)) shall be at the expense of the
party causing such removal.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 8.07 shall
not become effective until acceptance of appointment by the successor trustee as
provided in Section 8.08; and no such resignation or removal of the Trustee
and/or appointment of a successor trustee shall be permitted, unless, as
confirmed in writing by each Rating Agency, such resignation or removal and
appointment would not result in the downgrade, qualification (if applicable) or
withdrawal of the rating assigned by any Rating Agency to any Class of
Certificates.
Section 8.08 Successor Trustee.
------------------
(a) Any successor trustee appointed as provided in Section 8.07
shall execute, acknowledge and deliver to the Depositor, the Master Servicer,
the Special Servicer, the REMIC Administrator and to its predecessor trustee an
instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the predecessor trustee shall become effective and such successor
trustee without any further act, deed or conveyance, shall become fully vested
with all the rights, powers, duties and obligations of its predecessor
hereunder, with the like effect as if originally named as trustee herein. The
predecessor trustee shall deliver to the successor trustee all Mortgage Files
and related documents and statements held by it hereunder, and the Depositor,
the Master Servicer, the Special Servicer, the REMIC Administrator and the
predecessor trustee shall execute and deliver such instruments and do such other
things as may reasonably be required to more fully and certainly vest and
confirm in the successor trustee all such rights, powers, duties and
obligations, and to enable the successor trustee to perform its obligations
hereunder. If such predecessor trustee was removed as Trustee under this
Agreement without cause, the cost of any such execution, delivery or action
shall be at the expense of the Trust.
(b) No successor trustee shall accept appointment as provided in
this Section 8.08 unless at the time of such acceptance such successor trustee
shall be eligible under the provisions of Section 8.06.
(c) Upon acceptance of appointment by a successor trustee as
provided in this Section 8.08, the successor trustee shall mail notice of the
succession of such trustee to the Depositor and the Certificateholders.
(d) The predecessor Trustee and successor Trustee shall notify the
Depositor of any such appointment at least two Business Days prior to the
effective date thereof and shall provide the Depositor with all information
required by the Depositor to comply with its reporting obligation under Item
6.02 of Form 8-K not later than the effective date of such appointment.
Section 8.09 Merger or Consolidation of Trustee.
-----------------------------------
Any entity into which the Trustee may be merged or converted or with
which it may be consolidated or any entity resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any entity succeeding
to the corporate trust business of the Trustee, shall be the successor of the
Trustee, hereunder, without the execution or filing of any paper or any further
act on the part of any of the parties hereto, anything herein to the contrary
notwithstanding; provided that the Trustee shall continue to be eligible under
the provisions of Section 8.06 and, as confirmed in writing by each Rating
Agency, such merger, conversion or consolidation would not result in the
downgrade, qualification (if applicable) or withdrawal of the rating assigned by
any Rating Agency to any Class of Certificates. The successor to the Trustee
shall promptly notify in writing each of the other parties hereto, the
Certificateholders and the Rating Agencies of any such merger, conversion,
consolidation or succession to business. The Trustee and such surviving Person
shall notify the Depositor of any such merger, conversion or consolidation at
least two Business Days prior to the effective date thereof and shall provide
the Depositor will all information required by the Depositor to comply with its
reporting obligation under Item 6.02 of Form 8-K not later than the effective
date of such merger, conversion or consolidation.
Section 8.10 Appointment of Co-Trustee or Separate Trustee.
----------------------------------------------
(a) Notwithstanding any other provisions hereof, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust Fund or property securing the same may at the time be located,
the Master Servicer and the Trustee acting jointly shall have the power and
shall execute and deliver all instruments to appoint one or more Persons
approved by the Trustee to act as co-trustee or co-trustees, jointly with the
Trustee, or separate trustee or separate trustees, of all or any part of the
Trust Fund, and to vest in such Person or Persons, in such capacity, such title
to the Trust Fund, or any part thereof, and, subject to the other provisions of
this Section 8.10, such powers, duties, obligations, rights and trusts as the
Master Servicer and the Trustee may consider necessary or desirable. If the
Master Servicer shall not have joined in such appointment within 15 days after
the receipt by it of a request to do so, or in case an Event of Default in
respect of the Master Servicer shall have occurred and be continuing, the
Trustee alone shall have the power to make such appointment. No co-trustee or
separate trustee hereunder shall be required to meet the terms of eligibility as
a successor trustee under Section 8.06 hereunder and no notice to Holders of
Certificates of the appointment of co-trustee(s) or separate trustee(s) shall be
required under Section 8.08 .
(b) In the case of any appointment of a co-trustee or separate
trustee pursuant to this Section 8.10 all rights, powers, duties and obligations
conferred or imposed upon the Trustee, to the extent necessary for such
co-trustee to perform its duties and obligations for which it has been appointed
and specifically including the provisions of Section 8.05(b), shall be conferred
or imposed upon and exercised or performed by the Trustee and such separate
trustee or co-trustee jointly, except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed (whether as
Trustee hereunder or as successor to the Master Servicer, the Special Servicer
or the REMIC Administrator hereunder), the Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights, powers,
duties and obligations (including the holding of title to the Trust Fund or any
portion thereof in any such jurisdiction) shall be exercised and performed by
such separate trustee or co-trustee at the direction of the Trustee.
(c) Any notice, request or other writing given to the Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article VIII. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Trustee. Every such instrument shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may, at any time, constitute
the Trustee, its agent or attorney-in-fact, with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
(e) The appointment of a co-trustee or separate trustee under this
Section 8.10 shall not relieve the Trustee of its duties, responsibilities or
liabilities hereunder; provided the Trustee shall have no liability for the
actions or inaction of a separate trustee or co-trustee that do not comply with
the provisions of Section 8.10(b).
Section 8.11 Appointment of Custodians.
--------------------------
The Trustee may, with the consent of the Master Servicer, appoint
one or more Custodians to hold all or a portion of the Mortgage Files as agent
for the Trustee; provided that if the Custodian is an Affiliate of the Trustee
such consent of the Master Servicer need not be obtained and the Trustee shall
instead notify the Master Servicer of such appointment. Each Custodian shall be
a depository institution subject to supervision by federal or state authority,
shall have combined capital and surplus (or shall have its performance
guaranteed by an Affiliate with a combined capital and surplus) of at least
$10,000,000, shall be qualified to do business in the jurisdiction in which it
holds any Mortgage File and shall not be the Depositor, the Mortgage Loan Seller
or any Affiliate of any of them. Each Custodian shall be subject to the same
obligations and standard of care as would be imposed on the Trustee hereunder in
connection with the retention of Mortgage Files directly by the Trustee. The
appointment of one or more Custodians shall not relieve the Trustee from any of
its duties, liabilities or obligations hereunder, and the Trustee shall remain
responsible for all acts and omissions of any Custodian. Any such Custodian
(other than the Trustee or an Affiliate of the Trustee) shall maintain the same
errors and omissions insurance as required of the Master Servicer pursuant to
Section 3.07(c).
Section 8.12 Access to Certain Information.
------------------------------
(a) The Trustee shall provide or cause to be provided to the
Depositor, the Master Servicer, the Special Servicer and the Rating Agencies,
and to the OTS, the FDIC, and any other federal or state banking or insurance
regulatory authority that may exercise authority over any Certificateholder,
access to the Mortgage Files and any other documentation regarding the Loans and
the Trust Fund, that is within its control that may be required by this
Agreement or by applicable law. Such access shall be afforded without charge but
only upon reasonable prior written request and during normal business hours at
the offices of the Trustee designated by it.
(b) Promptly following the first sale of any Non-Registered
Certificate to an Independent third party, the Depositor shall provide to the
Trustee ten copies of any private placement memorandum or other disclosure
document used by the Depositor or its Affiliate in connection with the offer and
sale of the Class of Certificates to which such Non-Registered Certificate
belongs. In addition, if any such private placement memorandum or disclosure
document is revised, amended or supplemented at any time following the delivery
thereof to the Trustee, the Depositor promptly shall inform the Trustee of such
event and shall deliver to the Trustee ten copies of the private placement
memorandum or disclosure document, as revised, amended or supplemented. The
Trustee shall maintain at its Corporate Trust Office and shall on behalf of the
Depositor, upon reasonable advance written notice, make available during normal
business hours for review by each Rating Agency and by any Certificateholder or
any Certificate Owner or any Person identified to the Trustee by a
Certificateholder or a Certificate Owner as a prospective transferee of a
Certificate or interest therein, originals or copies of the following items: (i)
in the case of a Holder or prospective transferee of a Non-Registered
Certificate, any private placement memorandum or other disclosure document
relating to the Class of Certificates to which such Non-Registered Certificate
belongs, in the form most recently provided to the Trustee; and (ii) in all
cases, (A) all Officer's Certificates delivered to the Trustee since the Closing
Date pursuant to Section 11.09, (B) all accountants' reports delivered to the
Trustee since the Closing Date pursuant to Section 11.11, (C) the most recent
inspection report, together with any related additional written or electronic
information, prepared or obtained by, or on behalf of, the Master Servicer or
Special Servicer, as the case may be, and delivered to the Trustee in respect of
each Mortgaged Property pursuant to Section 3.12(a), (D) all Mortgagor financial
statements and Mortgaged Property operating statements and rent rolls, together
with any related additional written or electronic information, delivered to the
Trustee by the Master Servicer or the Special Servicer pursuant to Section
3.12(b), (E) any and all notices and reports delivered to the Trustee with
respect to any Mortgaged Property securing a Defaulted Serviced Loan as to which
the environmental testing contemplated by Section 3.09(c) revealed that either
of the conditions set forth in clauses (i) and (ii) of the first sentence
thereof was not satisfied or that any remedial, corrective or other further
action contemplated in such clauses is required (but only for so long as such
Mortgaged Property or the related Mortgage Loan is part of the Trust Fund), (F)
all documents constituting the Mortgage Files, including, without limitation,
any and all modifications, waivers and amendments of the terms of a Loan entered
into by the Master Servicer or the Special Servicer and delivered to the Trustee
pursuant to Section 3.20 (but, in each case, only for so long as the related
Mortgage Loan is part of the Trust Fund) and, (G) any Asset Status Report.
Copies of any and all of the foregoing items are to be available from the
Trustee upon request; however, the Trustee shall be permitted to require payment
of a sum sufficient to cover the reasonable costs and expenses of providing such
service.
In connection with providing access to or copies of the items
described in the immediately preceding paragraph of this Section 8.12(b), the
Trustee may require, unless the Depositor directs otherwise, (i) in the case of
Certificate Owners, a written confirmation executed by the requesting Person, in
form reasonably satisfactory to the Trustee, generally to the effect that such
Person is a beneficial holder of Certificates and will keep such information
confidential and (ii) in the case of any prospective purchaser of a Certificate
or, in the case of a Book-Entry Certificate, of a beneficial ownership interest
therein, a written confirmation executed by the requesting Person, in form
reasonably satisfactory to the Trustee, generally to the effect that such Person
is a prospective purchaser of a Certificate or a beneficial ownership interest
therein, is requesting the information for use in evaluating a possible
investment in Certificates and will otherwise keep such information
confidential. All Certificateholders, by acceptance of their Certificates, shall
be deemed to have agreed to keep such information confidential, except to the
extent that the Depositor grants written permission to the contrary.
Notwithstanding the preceding sentences of this paragraph, the Trustee shall
have no responsibility for the accuracy, completeness or sufficiency of any
information so made available or furnished by it in the manner described in the
immediately preceding paragraph.
Section 8.13 Maintenance of Mortgage File.
-----------------------------
Except for the release of items in the Mortgage File contemplated by
this Agreement, including, without limitation, as necessary for the enforcement
of the holder's rights and remedies under the related Mortgage Loan, the Trustee
covenants and agrees that it shall maintain each Mortgage File in the State of
Minnesota, and that it shall not move any Mortgage File outside the State of
Minnesota, other than as specifically provided for in this Agreement, unless it
shall first obtain and provide, at the expense of the Trustee, an Opinion of
Counsel addressed to the Depositor and the Rating Agencies to the effect that
the Trustee's first priority interest in the Mortgage Notes has been duly and
fully perfected under the applicable laws and regulations of such other
jurisdiction.
ARTICLE IX
TERMINATION
Section 9.01 Termination Upon Repurchase or Liquidation of All
-------------------------------------------------
Mortgage Loans.
---------------
Subject to Section 9.02, the Trust and the respective obligations
and responsibilities under this Agreement of the Depositor, the Master Servicer,
the Special Servicer, the Trustee and the REMIC Administrator (other than the
obligations of the Trustee to provide for and make payments to
Certificateholders as hereafter set forth and the obligations of the REMIC
Administrator to file the final Tax Returns for each of REMIC I and REMIC II and
to maintain the books and records thereof for a commercially reasonable period)
shall terminate upon payment (or provision for payment) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required hereunder to be so paid on the Distribution Date following the earlier
to occur of (i) the purchase by the Majority Certificateholder of the
Controlling Class (other than the Depositor or the Mortgage Loan Seller) the
Master Servicer, or the Special Servicer (in that order of priority) of all
Mortgage Loans and each REO Property remaining in REMIC I at a price (to be
calculated by the Master Servicer and the Trustee as of the close of business on
the third Business Day preceding the date upon which notice of any such purchase
is furnished to Certificateholders pursuant to the third paragraph of this
Section 9.01 and as if the purchase was to occur on such Business Day) equal to
(A) the aggregate Purchase Price of all the Mortgage Loans included in REMIC I,
plus (B) the appraised value of each REO Property, if any, included in REMIC I
(such appraisal to be conducted by a Qualified Appraiser selected by the Master
Servicer or the Special Servicer and approved by the Trustee), minus (C) if such
purchase is being made by the Master Servicer or the Special Servicer, the
aggregate amount of unreimbursed Advances made by the related person, together
with any Advance Interest payable to the related person in respect of such
Advances and any unpaid servicing compensation remaining outstanding (which
items shall be deemed to have been paid or reimbursed to the related person in
connection with such purchase), and (ii) the final payment or other liquidation
(or any Advance with respect thereto) of the last Mortgage Loan or REO Property
remaining in REMIC I; provided, however, that in no event shall the trust
created hereby continue beyond the expiration of 21 years from the death of the
last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late ambassador of
the United States to the Court of St. Xxxxx, living on the date hereof.
The Majority Certificateholder of the Controlling Class (other than
the Depositor or the Mortgage Loan Seller) has the right, and if the Majority
Certificateholder of the Controlling Class fails to exercise such right, the
Master Servicer and the Special Servicer, in that order of priority, has the
right to purchase all of the Mortgage Loans and each REO Property remaining in
REMIC I as contemplated by clause (i) of the preceding paragraph by giving
written notice to the other parties hereto no later than 60 days prior to the
anticipated date of purchase; provided, however, that the Master Servicer, the
Special Servicer and any Majority Certificateholder of the Controlling Class
(other than the Depositor or the Mortgage Loan Seller) each may so elect to
purchase all of the Mortgage Loans and each REO Property remaining in REMIC I
only if the aggregate Stated Principal Balance of the Mortgage Pool at the time
of such election is less than 1.0% of the aggregate Cut-off Date Balance of all
the Mortgage Loans included in the Trust Fund as of the Closing Date. In the
event that the Master Servicer, the Special Servicer or any Majority
Certificateholder of the Controlling Class (other than the Depositor or the
Mortgage Loan Seller) elects to purchase all of the Mortgage Loans and each REO
Property remaining in REMIC I in accordance with the preceding sentence, the
Master Servicer, the Special Servicer or such Majority Certificateholder, as
applicable, shall deposit into the Distribution Account not later than the
Master Servicer Remittance Date relating to the Distribution Date on which the
final distribution on the Certificates is to occur, an amount in immediately
available funds equal to the above-described purchase price (exclusive of any
portion thereof payable to any Person other than the Certificateholders pursuant
to Section 3.05(a), which portion shall be deposited into the Certificate
Account) or, if the Serviced Whole Loan is involved, in the Serviced Whole Loan
Custodial Account. In addition, the Master Servicer shall transfer all amounts
required to be transferred to the Distribution Account on such Master Servicer
Remittance Date from the Certificate Account or if the Serviced Whole Loan is
involved, the Serviced Whole Loan Custodial Account pursuant to the first
paragraph of Section 3.04(e). Upon confirmation that such final deposits have
been made, the Trustee shall release or cause to be released to the purchaser or
its designee, the Mortgage Files for the remaining Mortgage Loans and shall
execute all assignments, endorsements and other instruments furnished to it by
the purchaser, as shall be necessary to effectuate transfer of the Mortgage
Loans and REO Properties remaining in REMIC I.
Following the date on which the Class Principal Balances of the
Investment Grade Sequential Pay Certificates are reduced to zero, the Sole
Pooled Certificateholder shall have the right to exchange all of such
Certificates for all of the Mortgage Loans and each REO Property remaining in
the Trust Fund by giving written notice to all the parties hereto and each One
Stamford Forum Controlling Holder no later than 60 days prior to the anticipated
date of exchange. In the event that the Holders voluntarily participate in the
exchange described above, such exchange shall occur by means of an arms length
transaction for which such Holder shall have received, immediately upon the
consummation of the exchange described in the next sentence, consideration
(which consideration may include (among other things): cash (or its equivalent),
a beneficial ownership interest in the related Mortgage Loan in the form of a
participation or any combination thereof) for its beneficial ownership interest
in the Trust Fund and its related interest in any REMIC created hereunder equal
to the value of the Certificates held by such Holder. Further, in the event that
the Sole Pooled Certificateholder elects to exchange all of its Certificates for
all of the Mortgage Loans and each REO Property (or the pro rata portion thereof
allocable to such Holders) remaining in the Trust in accordance with the second
preceding sentence, the Sole Pooled Certificateholder, not later than the
Distribution Date on which the final distribution on the Certificates is to
occur, shall deposit in the Certificate Account an amount in immediately
available funds equal to all amounts due and owing to the Depositor, the Master
Servicer, the Special Servicer and the Trustee hereunder through the date of the
liquidation of the Trust Fund that may be withdrawn from the Certificate
Account, or an escrow account acceptable to the respective parties hereto,
pursuant to Section 3.05(a) or that may be withdrawn from the Distribution
Account pursuant to Section 3.05(b), but only to the extent that such amounts
are not already on deposit in the Certificate Account. In addition, the Master
Servicer shall transfer all amounts required to be transferred to the REMIC I
Distribution Account on such Distribution Date from the Certificate Account
pursuant to Section 3.04(c)(i). Upon confirmation that such final deposits have
been made and following the surrender of all the Certificates beneficially owned
by the Sole Pooled Certificateholder, the Trustee shall, upon receipt of a
Request for Release from the Master Servicer, release or cause to be released to
the Sole Pooled Certificateholder or any designee thereof, the Mortgage Files
for the remaining Mortgage Loans and shall execute all assignments, endorsements
and other instruments furnished to it by the Sole Pooled Certificateholder as
shall be necessary to effectuate transfer of the Mortgage Loans and REO
Properties remaining in the Trust Fund, and the Trust Fund shall be liquidated
in accordance with Section 9.02. The remaining Mortgage Loans and REO Properties
shall thereupon be deemed distributed to the Sole Pooled Certificateholder in
liquidation of the Trust Fund pursuant to Section 9.02. Solely for federal
income tax purposes, the Sole Pooled Certificateholder shall be deemed to have
purchased the assets of REMIC I for an amount equal to the remaining Class
Principal Balance of their respective Certificates, plus accrued, unpaid
interest with respect thereto, and the Trustee shall credit such amounts against
amounts distributable in respect of such Certificates and the Corresponding
REMIC I Regular Interests.
Notice of any termination shall be given promptly by the Trustee by
letter to the Certificateholders and, if not previously notified pursuant to the
preceding paragraph, to the other parties hereto mailed (a) in the event such
notice is given in connection with a purchase by the Master Servicer or any
Majority Certificateholder of the Controlling Class (other than the Depositor or
the Mortgage Loan Seller) of all of the Mortgage Loans and each REO Property
remaining in REMIC I, not earlier than the fifteenth day and not later than the
twenty-fifth day of the month next preceding the month of the final distribution
on the Certificates or (b) otherwise during the month of such final distribution
on or before the fifth day of such month, in each case specifying (i) the
Distribution Date upon which the Trust will terminate and final payment on the
Certificates will be made, (ii) the amount of any such final payment and (iii)
that the Record Date otherwise applicable to such Distribution Date is not
applicable, payments being made only upon presentation and surrender of the
Certificates at the offices of the Certificate Registrar or such other location
therein designated.
Upon presentation and surrender of the Certificates by the
Certificateholders on the Final Distribution Date, the Trustee shall distribute
to each Certificateholder so presenting and surrendering its Certificates such
Certificateholder's Percentage Interest of that portion of the Available
Distribution Amount and Prepayment Premiums for such date that is allocable to
payments on the relevant Class in accordance with Section 4.01(b) and Section
4.01(c)(i). Final distributions on the REMIC I Regular Interests shall be deemed
to be made on such date as provided in Section 4.01(a)(i), Section 4.01(a)(ii),
Section 4.01(b) and Section 4.01(c)(iv).
Any funds not distributed to any Holder or Holders of Certificates
of any Class on the Final Distribution Date because of the failure of such
Holder or Holders to tender their Certificates shall, on such date, be set aside
and held uninvested in trust and credited to the account or accounts of the
appropriate non-tendering Holder or Holders. If any Certificates as to which
notice has been given pursuant to this Section 9.01 shall not have been
surrendered for cancellation within six months after the time specified in such
notice, the Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice all such Certificates shall not have been surrendered for cancellation,
the Trustee, directly or through an agent, shall take such reasonable steps to
contact the remaining non-tendering Certificateholders concerning the surrender
of their Certificates as it shall deem appropriate. The costs and expenses of
holding such funds in trust and of contacting such Certificateholders following
the first anniversary of the delivery of such second notice to the non-tendering
Certificateholders shall be paid out of such funds. No interest shall accrue or
be payable to any former Holder on any amount held in trust hereunder. If by the
second anniversary of the delivery of such second notice, all of the
Certificates shall not have been surrendered for cancellation, the Class R-II
Certificateholders shall be entitled to all unclaimed funds and other assets
that remain subject thereto.
Section 9.02 Additional Termination Requirements.
------------------------------------
In the event the Master Servicer, the Special Servicer or a Majority
Certificateholder of the Controlling Class (other than the Depositor or the
Mortgage Loan Seller) purchases all of the Mortgage Loans and each REO Property
remaining in REMIC I as provided in Section 9.01, the Trust (and, accordingly,
REMIC I and REMIC II) shall be terminated in accordance with the following
additional requirements, unless the Master Servicer or such Majority
Certificateholder, as applicable, obtains at its own expense and delivers to the
Trustee and the REMIC Administrator an Opinion of Counsel, addressed to the
Trustee and the REMIC Administrator, to the effect that the failure of the Trust
to comply with the requirements of this Section 9.02 will not result in the
imposition of taxes on "prohibited transactions" of REMIC I or REMIC II as
defined in Section 860F of the Code or cause REMIC I or REMIC II to fail to
qualify as a REMIC at any time that any Certificates are outstanding:
(i) the REMIC Administrator shall specify the first day in the
90-day liquidation period in a statement attached to the final Tax Return
for each of REMIC I and REMIC II pursuant to Treasury Regulations Section
1.860F-1;
(ii) during such 90-day liquidation period and at or prior to the
time of making of the final payment on the Certificates, the Trustee shall
sell all of the assets of REMIC I to the Master Servicer or the Majority
Certificateholder of the Controlling Class, as applicable, for cash; and
(iii) prior to the end of such 90-day period and at the time of the
making of the final payment on the Certificates, the Trustee shall
distribute or credit, or cause to be distributed or credited, to the
Holders of the Class R-I Certificates (in the case of REMIC I) and the
Class R-II Certificates (in the case of REMIC II) all cash on hand (other
than cash retained to meet claims), and each of REMIC I and REMIC II shall
terminate at that time.
ARTICLE X
ADDITIONAL REMIC AND GRANTOR TRUST PROVISIONS
Section 10.01 REMIC Administration.
---------------------
(a) The REMIC Administrator shall elect to treat each of REMIC I and
REMIC II as a REMIC under the Code and, if necessary, under Applicable State
Law. Each such election will be made on Form 1066 or other appropriate federal
or state Tax Returns for the taxable year ending on the last day of the calendar
year in which the Certificates are issued.
(b) The REMIC I Regular Interests are hereby designated as "regular
interests" (within the meaning of Section 860G(a)(1) of the Code), and the
residual interest in REMIC I, represented by the Class R-I Certificates, is
hereby designated as the sole Class of "residual interests" (within the meaning
of Section 860G(a)(2) of the Code), in REMIC I. The Class XW, Class A-1, Class
A-2, Class A-3, Class A-4, Class A-1A, Class A-M, Class A-J, Class B, Class C,
Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M,
Class N, Class O and Class P Certificates are hereby designated as the "regular
interests" (within the meaning of Section 860G(a)(1) of the Code), and the Class
R-II Certificates are hereby designated as the sole Class of "residual
interests" (within the meaning of Section 860G(a)(2) of the Code), in REMIC II.
For the avoidance of doubt, the Class XW Certificates represent "specified
portions," within the meaning of Treasury Regulations Section 1.860G-1(a)(2), of
the interest payments on the REMIC I Regular Interests corresponding to their
respective Corresponding Components. None of the REMIC Administrator, the Master
Servicer, the Special Servicer or the Trustee shall, to the extent it is within
the control of such Person, create or permit the creation of any other
"interests" in REMIC I or REMIC II.
(c) The Closing Date is hereby designated as the "startup day" of
each of REMIC I and REMIC II within the meaning of Section 860G(a)(9) of the
Code. The "latest possible maturity date", within the meaning of Treasury
Regulations Section 1.860G-1(a)(4)(iii) of the REMIC I Regular Interests and the
REMIC II Regular Certificates is the Rated Final Distribution Date.
(d) The REMIC Administrator is hereby designated as agent for the
Tax Matters Person of each of REMIC I and REMIC II and shall: act on behalf of
the Trust in relation to any tax matter or controversy, represent the Trust in
any administrative or judicial proceeding relating to an examination or audit by
any governmental taxing authority, request an administrative adjustment as to
any taxable year of REMIC I or REMIC II, enter into settlement agreements with
any governmental taxing agency, extend any statute of limitations relating to
any tax item of REMIC I or REMIC II, and otherwise act on behalf of each of
REMIC I and REMIC II in relation to any tax matter or controversy involving such
REMIC. By their acceptance thereof, the Holders of the Residual Certificates
hereby agree to irrevocably appoint the REMIC Administrator as their agent to
perform all of the duties of the Tax Matters Person for REMIC I and REMIC II.
Subject to Section 10.01(g), the legal expenses and costs of any action
described in this subsection (e) and any liability resulting therefrom shall be
expenses, costs and liabilities of the Trust, and the REMIC Administrator shall
be entitled to be reimbursed therefor out of any amounts on deposit in the
Distribution Account as provided by Section 3.05(b).
(e) The REMIC Administrator shall prepare and file or cause to be
prepared and filed, and the Trustee shall sign, all of the Tax Returns in
respect of each of REMIC I and REMIC II. The expenses of preparing and filing
such returns shall be borne by the REMIC Administrator without any right of
reimbursement therefor.
(f) The REMIC Administrator shall perform or cause to be performed
on behalf of each of REMIC I and REMIC II all reporting and other tax compliance
duties that are the responsibility of each such REMIC under the Code, the REMIC
Provisions or other compliance guidance issued by the IRS or any other taxing
authority under Applicable State Law. Included among such duties, the REMIC
Administrator shall provide, or cause to be provided: (i) to any Transferor of a
Residual Certificate and the IRS, such information as is necessary for the
application of any tax relating to the transfer of a Residual Certificate to any
Person who is a Disqualified Organization; (ii) to the Certificateholders, such
information or reports as are required by the Code or the REMIC Provisions,
including, without limitation, reports relating to interest, original issue
discount and market discount or premium (using the Prepayment Assumption as
required); and (iii) with respect to REMIC II, Form 8811, or other applicable
form, to the IRS, and the name, title, address and telephone number of the
Person who will serve as the representative of REMIC II.
(g) The REMIC Administrator shall perform its duties more
specifically set forth hereunder in a manner consistent with maintaining the
status of each of REMIC I and REMIC II as a REMIC under the REMIC Provisions
(and each of the other parties hereto shall assist it, to the extent reasonably
requested by it). The REMIC Administrator shall not knowingly take (or cause
either of REMIC I or REMIC II to take) any action or fail to take (or fail to
cause to be taken) any action within the scope of its duties more specifically
set forth hereunder that, under the REMIC Provisions, if taken or not taken, as
the case may be, could result in an Adverse REMIC Event with respect to REMIC I
or REMIC II, unless the REMIC Administrator has received an Opinion of Counsel
to the effect that the contemplated action will not result in an Adverse REMIC
Event. None of the other parties hereto shall take any action (whether or not
authorized hereunder) as to which the REMIC Administrator has advised it in
writing that it has received an Opinion of Counsel to the effect that an Adverse
REMIC Event could occur with respect to such action. In addition, prior to
taking any action with respect to REMIC I or REMIC II, or causing REMIC I or
REMIC II to take any action, that is not expressly permitted under the terms of
this Agreement, each of the other parties hereto will consult with the REMIC
Administrator, in writing, with respect to whether such action could cause an
Adverse REMIC Event to occur. None of the parties hereto shall take any such
action or cause REMIC I or REMIC II to take any such action as to which the
REMIC Administrator has advised it in writing that an Adverse REMIC Event could
occur. The REMIC Administrator may consult with counsel to make such written
advice, and the cost of same shall be borne: (i) if such action that is not
expressly permitted by this Agreement would be of a material benefit to or
otherwise in the best interests of the Certificateholders as a whole, by the
Trust and shall be paid by the Trustee at the direction of the REMIC
Administrator out of amounts on deposit in the Distribution Account; and (ii)
otherwise by the party seeking to take the action not permitted by this
Agreement.
In the event that any tax is imposed on REMIC I or REMIC II,
including, without limitation, "prohibited transactions" taxes as defined in
Section 860F(a)(2) of the Code, any taxes on contributions to REMIC I or REMIC
II after the Startup Day pursuant to Section 860G(d) of the Code, and any other
tax imposed by the Code or any applicable provisions of state or local tax laws
(other than any tax permitted to be incurred by the Special Servicer pursuant to
Section 3.17(a)), such tax, together with all incidental costs and expenses
(including, without limitation, penalties and reasonable attorneys' fees), shall
be charged to and paid by: (i) the REMIC Administrator, if such tax arises out
of or results from a breach by the REMIC Administrator of any of its obligations
under this Article X; (ii) the Trustee, if such tax arises out of or results
from a breach by the Trustee of any of its obligations under this Article X;
(iii) the Master Servicer, if such tax arises out of or results from a breach by
the Master Servicer of any of its obligations under Article III or this Article
X; (iv) the Special Servicer, if such tax arises out of or results from a breach
by the Special Servicer of any of its obligations under Article III or this
Article X; or (v) the Trust in all other instances. Any tax permitted to be
incurred by the Special Servicer pursuant to Section 3.17(a) shall be charged to
and paid by the Trust. Any such amounts payable by the Trust in respect of taxes
shall be paid by the Trustee at the direction of the REMIC Administrator out of
amounts on deposit in the REMIC I Distribution Account.
(h) The REMIC Administrator and, to the extent that records are
maintained thereby in the normal course of its business, each of the other
parties hereto shall, for federal income tax purposes, maintain books and
records with respect to each of REMIC I and REMIC II on a calendar year and on
an accrual basis. Such records with respect to REMIC I shall include, for each
Distribution Date, the applicable REMIC I Principal Balance, REMIC I Remittance
Rate, and each category of distribution on or with respect to the REMIC I
Regular Interests and the REMIC I Residual Interest.
(i) Following the Startup Day therefor, the Trustee shall not accept
any contributions of assets to REMIC I or REMIC II unless it shall have received
an Opinion of Counsel (at the expense of the party seeking to cause such
contribution) to the effect that the inclusion of such assets in such REMIC will
not cause: (i) such REMIC to fail to qualify as a REMIC at any time that any
Certificates are outstanding; or (ii) the imposition of any tax on such REMIC
under the REMIC Provisions or other applicable provisions of federal, state and
local law or ordinances.
(j) None of the REMIC Administrator, the Master Servicer, the
Special Servicer or the Trustee shall consent to or, to the extent it is within
the control of such Person, permit: (i) the sale or disposition of any of the
Mortgage Loans (except in connection with (A) a breach of any representation or
warranty of the Mortgage Loan Seller regarding the related Mortgage Loans or as
otherwise provided for in Section 2.03, (B) the foreclosure, default or imminent
default of a Mortgage Loan, including but not limited to, the sale or other
disposition of a Mortgaged Property acquired by deed-in-lieu of foreclosure, (C)
the bankruptcy of REMIC I or REMIC II, or (D) the termination of the Trust
pursuant to Article IX); (ii) the sale or disposition of any investments in the
Certificate Account or the REO Account for gain; or (iii) the acquisition of any
assets for the Trust Fund (other than a Mortgaged Property acquired through
foreclosure, deed-in-lieu of foreclosure or otherwise in respect of a Defaulted
Serviced Loan and other than Permitted Investments acquired in connection with
the investment of funds in the Certificate Account or the REO Account); in any
event unless it has received an Opinion of Counsel (from and at the expense of
the party seeking to cause such sale, disposition, or acquisition) to the effect
that such sale, disposition, or acquisition will not cause: (x) REMIC I or REMIC
II to fail to qualify as a REMIC at any time that any Certificates are
outstanding; or (y) the imposition of any tax on REMIC I or REMIC II under the
REMIC Provisions or other applicable provisions of federal, state and local law
or ordinances.
(k) Except as otherwise permitted by Section 3.17(a), none of the
REMIC Administrator, the Master Servicer, the Special Servicer or the Trustee
shall enter into any arrangement by which REMIC I or REMIC II will receive a fee
or other compensation for services or, to the extent it is within the control of
such Person, permit REMIC I or REMIC II to receive any income from assets other
than "qualified mortgages" as defined in Section 860G(a)(3) of the Code or
"permitted investments" as defined in Section 860G(a)(5) of the Code. At all
times as may be required by the Code, the REMIC Administrator shall make
reasonable efforts to ensure that substantially all of the assets of REMIC I and
REMIC II will consist of "qualified mortgages" as defined in Section 860G(a)(3)
of the Code and "permitted investments" as defined in Section 860G(a)(5) of the
Code.
Section 10.02 Depositor, Master Servicer, Special Servicer and
------------------------------------------------
Trustee to Cooperate with REMIC Administrator.
----------------------------------------------
(a) The Depositor shall provide or cause to be provided to the REMIC
Administrator, within ten days after the Closing Date, all information or data
that the REMIC Administrator reasonably determines to be relevant for tax
purposes as to the valuations and issue prices of the Certificates, including,
without limitation, the price, yield, prepayment assumption and projected cash
flow of the Certificates.
(b) The Master Servicer, the Special Servicer and the Trustee shall
each furnish such reports, certifications and information, and access to such
books and records maintained thereby, as may relate to the Certificates or the
Trust Fund and as shall be reasonably requested by the REMIC Administrator to
enable it to perform its duties hereunder.
Section 10.03 Fees of the REMIC Administrator.
--------------------------------
In the event the Trustee and the REMIC Administrator are not the
same Person, the Trustee covenants and agrees to pay to the REMIC Administrator
from time to time, and the REMIC Administrator shall be entitled to, reasonable
compensation (as set forth in a written agreement between the Trustee and the
REMIC Administrator) for all services rendered by it in the exercise and
performance of any of the obligations and duties of the REMIC Administrator
hereunder.
Section 10.04 Use of Agents.
--------------
The REMIC Administrator may execute any of its obligations and
duties hereunder either directly or by or through agents or attorneys-in-fact
consented to by the Trustee, which consent shall not be unreasonably withheld;
provided that the REMIC Administrator shall not be relieved of its liabilities,
duties and obligations hereunder by reason of the use of any such agent or
attorney-in-fact.
Section 10.05 Grantor Trust Administration.
-----------------------------
The parties intend that the portion of the Trust Fund consisting of
the Excess Interest and the Excess Interest Distribution Account shall be
treated as a "grantor trust" under the Code, and the provisions thereof shall be
interpreted consistently with this intention. In furtherance of such intention,
the Trustee shall file or cause to be filed annually with the IRS together with
IRS Form 1041 or such other form as may be applicable and shall furnish or cause
to be furnished annually to the Holders of the Class V Certificates, their
allocable share of income with respect to Excess Interest as such amounts accrue
or are received, as the case may be, after the related Anticipated Repayment
Date. Under no circumstances shall the Trustee, the Master Servicer or the
Special Servicer have the power to vary the investment of the Class V
Certificateholders in the Grantor Trust to take advantage of variations in the
market rate of interest to improve their rate of return.
ARTICLE XI
EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE
Section 11.01 Intent of the Parties; Reasonableness.
--------------------------------------
The parties hereto acknowledge and agree that the purpose of Article
XI of this Agreement is to facilitate compliance by the Depositor with the
provisions of Regulation AB and the related rules and regulations of the
Commission. Except with respect to Section 11.09 and Section 11.11, the
Depositor or the Master Servicer shall not exercise their right to request
delivery of information or other performance under these provisions other than
reasonably and in good faith, or for purposes other than compliance with the
Securities Act, the Exchange Act, the Xxxxxxxx-Xxxxx Act and, in each case, the
rules and regulations of the Commission thereunder. The parties hereto
acknowledge that interpretations of the requirements of Regulation AB may change
over time due to interpretive guidance provided by the Commission or its staff,
and agree to comply with reasonable requests made by the Depositor or the Master
Servicer in good faith for delivery of information under these provisions on the
basis of evolving interpretations of Regulation AB. In connection with the Banc
of America Commercial Mortgage Inc., Commercial Mortgage Pass-Through
Certificates, Series 2006-3, each of the Master Servicer, the Special Servicer
and the Trustee shall cooperate fully with the Depositor and the Master
Servicer, as applicable, to deliver to the Depositor or the Trustee, as
applicable (including any of their assignees or designees), any and all
information in its possession necessary in the good faith determination of the
Depositor or the Trustee, as applicable, to permit the Depositor to comply with
the provisions of Regulation AB, together with such disclosures relating to the
Master Servicer, the Special Servicer and the Trustee, as applicable, and any
Additional Servicer, Subcontractor, Servicing Function Participant or
Sub-Servicer, or the servicing of the Mortgage Loans, reasonably believed by the
Depositor or the Master Servicer, as applicable, to be necessary in order to
effect such compliance. Each party to this Agreement shall have a reasonable
period of time to comply with any written request made under this Section 11.01,
but in any event, shall, upon reasonable advance written request, provide
information in sufficient time to allow the Depositor or the Trustee, as
applicable, to satisfy any related filing requirements.
Section 11.02 Succession; Subcontractors.
---------------------------
(a) In connection with the succession to the Master Servicer and
Special Servicer or any Sub-Servicer contemplated by Item 1108(a)(2) of
Regulation AB as servicer or Sub-Servicer under this Agreement by any Person (i)
into which the Master Servicer and Special Servicer or such Sub-Servicer may be
merged or consolidated, or (ii) which may be appointed as a successor to the
Master Servicer and Special Servicer or any Sub-Servicer, the Master Servicer
and Special Servicer shall provide to the Depositor, at least 5 Business Days
prior to the effective date of such succession or appointment, (x) written
notice to the Depositor of such succession or appointment and (y) in writing and
in form and substance reasonably satisfactory to the Depositor, all information
relating to such successor reasonably requested by the Depositor in order to
comply with its reporting obligation under Item 6.02 of Form 8-K pursuant to the
Exchange Act (if such reports under the Exchange Act are required to be filed
under the Exchange Act) pursuant to Section 11.07; provided, however, that if
disclosing such information prior to such effective date would violate any
applicable law or confidentiality agreement, the Master Servicer or Special
Servicer, as applicable, shall submit such disclosure to the Depositor no later
than the second Business Day after such effective date of such succession or
appointment.
(b) Each of the Master Servicer, the Special Servicer, the
Sub-Servicer and the Trustee (each of the Master Servicer, the Special Servicer
and the Trustee and each Sub-Servicer, for purposes of this paragraph, a
"Servicer") is permitted to utilize one or more Subcontractors to perform
certain of its obligations hereunder. Such Servicer shall promptly upon request
provide to the Depositor a written description (in form and substance reasonably
satisfactory to the Depositor) of the role and function of each Subcontractor
that is a Servicing Function Participant utilized by such Servicer, specifying
(i) the identity of each Subcontractor, and (ii) which elements of the Servicing
Criteria will be addressed in assessments of compliance provided by such
Subcontractor. As a condition to the utilization by such Servicer of any
Subcontractor determined to be a Servicing Function Participant, such Servicer
shall use commercially reasonable efforts (including enforcement as such term is
described in Section 3.22(c)) to cause any such Subcontractor used by such
Servicer to comply with the provisions of Section 11.10 and Section 11.11 to the
same extent as if such Subcontractor were such Servicer. Such Servicer shall use
commercially reasonable efforts (including enforcement as such term is described
in Section 3.22(c)) to obtain from each such Subcontractor and delivering to the
applicable Persons any assessment of compliance report and related accountant's
attestation required to be delivered by such Subcontractor under Section 11.10
and Section 11.11, in each case, as and when required to be delivered.
(c) Notwithstanding the foregoing, if a Servicer engages a
Subcontractor in connection with the performance of any of its duties under this
Agreement, such Servicer shall be responsible for determining whether such
Subcontractor is a "servicer" within the meaning of Item 1101 of Regulation AB
and whether any such affiliate or third-party vendor meets the criteria in Item
1108(a)(2)(i), (ii) or (iii) of Regulation AB. If a Servicer determines,
pursuant to the preceding sentence, that such Subcontractor is a "servicer"
within the meaning of Item 1101 of Regulation AB and meets the criteria in Item
1108(a)(2)(i), (ii) or (iii) of Regulation AB, then such Subcontractor shall be
deemed to be an Additional Servicer for purposes of this Agreement, the
engagement of such Additional Servicer shall not be effective unless and until
notice is given to the Depositor and the Trustee of any such Additional Servicer
and Sub-Servicing Agreement or other servicing arrangement. Such notice shall
contain all information reasonably necessary to enable the Trustee to accurately
and timely report the event under Item 6.02 of Form 8-K pursuant to the Exchange
Act (if such reports under the Exchange Act are required to be filed under the
Exchange Act) pursuant to Section 11.07.
(d) In connection with the succession to the Trustee under this
Agreement by any Person (i) into which the Trustee may be merged or
consolidated, or (ii) which may be appointed as a successor to the Trustee, the
Trustee shall notify the Depositor, at least 10 Business Days prior to the
effective date of such succession or appointment and shall furnish to the
Depositor in writing and in form and substance reasonably satisfactory to the
Depositor, all information reasonably necessary for the Trustee to accurately
and timely report, pursuant to Section 11.07, the event under Item 6.02 of Form
8-K pursuant to the Exchange Act (if such reports under the Exchange Act are
required to be filed under the Exchange Act); provided, however, that if
disclosing such information prior to such effective date would violate any
applicable law or confidentiality agreement, the Trustee shall submit such
disclosure to the Depositor no later than the second Business Day after such
effective date of such succession or appointment.
Section 11.03 Filing Obligations.
-------------------
(a) The Master Servicer, the Special Servicer and the Trustee shall
reasonably cooperate with the Depositor in connection with the satisfaction of
the Trust's reporting requirements under the Exchange Act. The Trustee shall
prepare for execution by the Depositor any Forms 8-K, 10-D and 10-K required by
the Exchange Act in order to permit the timely filing thereof, and the Trustee
shall file (via the Commission's Electronic Data Gathering and Retrieval System)
such Forms executed by the Depositor.
(b) In the event that the Trustee is unable to timely file with the
Commission all or any required portion of any Form 8-K, 10-D or 10-K required to
be filed by this Agreement because required disclosure information was either
not delivered to it or delivered to it after the delivery deadlines set forth in
this Agreement, the Trustee will promptly notify the Depositor and whichever
party hereto failed to deliver, or delivered after any applicable deadline, any
required disclosure information. In the case of Forms 10-D and 10-K, the
Depositor, the Master Servicer and the Trustee will thereupon cooperate to
prepare and file a Form 12b-25 and a Form 10-D/A or Form 10-K/A, as applicable,
pursuant to Rule 12b-25 of the Exchange Act. In the case of Form 8-K, the
Trustee will, upon receipt of all required Form 8-K Disclosure Information and
upon direction of the Depositor, include such disclosure information on the next
Form 10-D. In the event that any previously filed Form 8-K, Form 10-D or Form
10-K needs to be amended, the Trustee will notify the Depositor, and the parties
hereto will cooperate to prepare any necessary Form 8-K/A, Form 10-D/A or Form
10-K/A; provided, however, that the Trustee will not be required to notify the
Depositor or any other party hereto in advance of amending Form 10-D where such
amendment is solely for the purpose of re-stating the Distribution Date
Statement. Any Form 15, Form 12b-25 or any amendment to Form 8-K, Form 10-D or
Form 10-K shall be signed by an officer of the Depositor. The parties hereto
acknowledge that the performance by the Trustee of its duties under Section
11.08 related to the timely preparation and filing of Form 15, a Form 12b-25 or
any amendment to Form 8-K, Form 10-D or Form 10-K is contingent upon such
parties observing all applicable deadlines in the performance of their duties
under Sections 11.03, 11.04, 11.05, 11.07, 11.08, 11.09, 11.10 and 11.11. The
Trustee shall have no liability for any loss, expense, damage, claim arising out
of or with respect to any failure to properly prepare, arrange for execution
and/or timely file any such Form 15, Form 12b-25 or any amendments to Forms 8-K,
Form 10-D or Form 10-K, where such failure results from the Trustee's inability
or failure to receive, on a timely basis, any information from any other party
hereto needed to prepare, arrange for execution or file such Form 15, Form
12b-25 or any amendments to Forms 8-K, Form 10-D or Form 10-K, not resulting
from its own negligence, bad faith or willful misconduct.
Section 11.04 Form 10-D Filings.
------------------
(a) Within 15 days after each Distribution Date (subject to
permitted extensions under the Exchange Act), the Trustee shall prepare and file
on behalf of the Trust any Form 10-D required by the Exchange Act, in form and
substance as required by the Exchange Act. The Trustee shall file each Form 10-D
with a copy of the related Statement to Certificateholders attached thereto. Any
disclosure in addition to the Statement to Certificateholders that is required
to be included on Form 10-D ("Additional Form 10-D Disclosure") shall pursuant
to the paragraph immediately below, be reported by the parties set forth on
Schedule IX to the Depositor and the Trustee and approved by the Depositor, and
the Trustee will have no duty or liability for any failure hereunder to
determine or prepare any Additional Form 10-D Disclosure absent such reporting,
direction and approval; provided, however, that the Trustee shall promptly
notify the Depositor of any such report that it receives.
For so long as the Trust is subject to the reporting requirements of
the Exchange Act, as set forth on Schedule IX hereto, within five calendar days
after the related Distribution Date: (i) the parties listed on Schedule IX
hereto shall be required to provide to the Trustee and the Depositor, to the
extent a responsible officer has actual knowledge thereof, in XXXXX-compatible
format, or in such other format as otherwise agreed upon by the Trustee and the
Depositor and such party, the form and substance of the Additional Form 10-D
Disclosure described on Schedule IX hereto applicable to such party; (ii) the
parties listed on Schedule IX hereto shall include with such Additional Form
10-D Disclosure, an Additional Disclosure Notification in the form attached
hereto as Schedule XII; and (iii) the Depositor shall approve, as to form an
substance, or disapprove, as the case may be, the inclusion of the Additional
Form 10-D Disclosure on Form 10-D. The Trustee has no duty under this Agreement
to monitor or enforce the performance by the parties listed on Schedule IX
hereto of their duties under this paragraph or proactively solicit or procure
from such parties any Additional Form 10-D Disclosure information. The Depositor
will be responsible for any reasonable fees assessed and any expenses incurred
by the Trustee in connection with including any Additional Form 10-D Disclosure
on Form 10-D pursuant to this paragraph.
(b) After preparing the Form 10-D, the Trustee shall forward
electronically a copy of the Form 10-D to the Depositor for review and approval.
No later than two calendar days prior to the 15th calendar day after the related
Distribution Date, a duly authorized representative of the Depositor shall sign
the Form 10-D and return an electronic or fax copy of such signed Form 10-D
(with an original executed hard copy to follow by overnight mail) to the
Trustee. If a Form 10-D cannot be filed on time or if a previously filed Form
10-D needs to be amended, the Trustee will follow the procedures set forth in
Section 11.03(b). Promptly after filing with the Commission, the Trustee will
make available on its internet website a final executed copy of each Form 10-D
prepared and filed by the Trustee. The signing party at the Depositor can be
contacted at: Xxxxxxx X. Xxxxx, Banc of America Securities LLC, 000 Xxxxx Xxxxx
Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Telephone No. (000) 000-0000, and Xxxx
X. Xxxxxxx, Esq., Bank of America Corporation, 000 Xxxxx Xxxxx Xxxxxx, 30th
Floor, NC1-002-29-01, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Telephone No. (704)
000-0000. The parties hereto acknowledge that the performance by the Trustee of
its duties under this Section 11.04(b) related to the timely preparation and
filing of Form 10-D is contingent upon the parties observing all applicable
deadlines in the performance of their duties under this Section 11.04. The
Trustee shall have no liability for any loss, expense, damage, or claim arising
out of or with respect to any failure to properly prepare, arrange for execution
and/or timely file such Form 10-D, where such failure results from the Trustee's
inability or failure to receive, on a timely basis, any information from any
party hereto needed to prepare, arrange for execution or file such Form 10-D,
not resulting from its own negligence, bad faith or willful misconduct.
Form 10-D requires the registrant to indicate (by checking "yes" or
"no") that it "(1) has filed all reports required to be filed by Section 13 or
15(d) of the Exchange Act during the preceding 12 months (or for such shorter
period that the registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days." The Depositor shall
notify the Trustee in writing, no later than the fifth calendar day after the
related Distribution Date with respect to the filing of a report on Form 10-D if
the answer to the questions should be "no". The Trustee shall be entitled to
rely on such representations in preparing, executing and/or filing any Form
10-D.
Section 11.05 Form 10-K Filings.
------------------
(a) Within 90 days after the end of each fiscal year of the Trust or
such earlier date as may be required by the Exchange Act (the "10-K Filing
Deadline"), commencing in March 2007, the Trustee shall prepare and file on
behalf of the Trust a Form 10-K, in form and substance as required by the
Exchange Act. Each such Form 10-K shall include the following items, in each
case to the extent they have been delivered to the Trustee within the applicable
time frames set forth in this Agreement:
(i) an annual compliance statement for the Master Servicer, the
Special Servicer, each Additional Servicer and the Trustee, as described
under Section 11.09;
(ii) (A) the annual reports on assessment of compliance with
servicing criteria for the Trustee, the Master Servicer, the Special
Servicer, any Additional Servicer, each Sub-Servicer engaged by the Master
Servicer or the Special Servicer and each Servicing Function Participant
utilized by the Master Servicer, the Special Servicer or the Trustee, as
described under Section 11.10, and (B) if any such report on assessment of
compliance with servicing criteria described under Section 11.10
identifies any material instance of noncompliance, disclosure identifying
such instance of noncompliance, or if such report on assessment of
compliance with servicing criteria described under Section 11.10 is not
included as an exhibit to such Form 10-K, disclosure that such report is
not included and an explanation why such report is not included;
(iii) (A) the registered public accounting firm attestation report
for the Trustee, the Master Servicer, the Special Servicer, any Additional
Servicer, each Sub-Servicer engaged by the Master Servicer and the Special
Servicer and each Servicing Function Participant utilized by the Master
Servicer, the Special Servicer or the Trustee, as described under Section
11.11, and (B) if any registered public accounting firm attestation report
described under Section 11.11 identifies any material instance of
noncompliance, disclosure identifying such instance of noncompliance, or
if any such registered public accounting firm attestation report is not
included as an exhibit to such Form 10-K, disclosure that such report is
not included and an explanation why such report is not included; and
(iv) a certification in the form attached hereto as Exhibit K, with
such changes as may be necessary or appropriate as a result of changes
promulgated by the Commission (the "Xxxxxxxx-Xxxxx Certification"), which
shall, except as described below, be signed by the senior officer of the
Depositor in charge of securitization.
Any disclosure or information in addition to clauses (i) through
(iv) above that is required to be included on Form 10-K ("Additional Form 10-K
Disclosure") shall, pursuant to the paragraph immediately below, be reported by
the parties set forth on Schedule X to the Depositor and the Trustee, and the
Trustee will have no duty or liability for any failure hereunder to determine or
prepare any Additional Form 10-K Disclosure absent such reporting, direction and
approval; provided, however, that the Trustee shall promptly notify the
Depositor of any Additional Form 10-K Disclosure that it receives.
For so long as the Trust is subject to the reporting requirements of
the Exchange Act, no later than March 15, commencing in March 2007: (i) the
parties listed on Schedule X hereto shall be required to provide to the Trustee
and the Depositor, to the extent that a responsible officer has actual knowledge
thereof, in XXXXX-compatible format, or in such other format as otherwise agreed
upon by the Trustee and the Depositor and such party, the form and substance of
the Additional Form 10-K Disclosure described on Schedule X hereto applicable to
such party; (ii) the parties listed on Schedule X hereto shall include with such
Additional Form 10-K Disclosure, an Additional Disclosure Notification in the
form attached hereto as Schedule XII; and (iii) the Depositor shall approve, as
to form an substance, or disapprove, as the case may be, the inclusion of the
Additional Form 10-K Disclosure on Form 10-K. The Trustee has no duty under this
Agreement to monitor or enforce the performance by the parties listed on
Schedule X hereto of their duties under this paragraph or proactively solicit or
procure from such parties any Additional Form 10-K Disclosure information. The
Depositor will be responsible for any reasonable fees assessed and expenses
incurred by the Trustee in connection with including any Additional Form 10-K
Disclosure on Form 10-K pursuant to this paragraph.
(b) After preparing the Form 10-K, the Trustee shall forward
electronically a copy of the Form 10-K to the Depositor for review and approval
no later than five Business Days prior to the 10-K Filing Deadline. No later
than 5:00 p.m. Eastern Time on the fourth Business Day prior to the 10-K Filing
Deadline, the senior officer in charge of securitization of the Depositor shall
sign the Form 10-K and return an electronic or fax copy of such signed Form 10-K
(with an original executed hard copy to follow by overnight mail) to the
Trustee. If a Form 10-K cannot be filed on time or if a previously filed Form
10-K needs to be amended, the Trustee will follow the procedures set forth in
this Section 11.03(b). Promptly after filing with the Commission, the Trustee
will make available on its internet website a final executed copy of each Form
10-K prepared and filed by the Trustee. The signing party at the Depositor can
be contacted at: Xxxxxxx X. Xxxxx, Banc of America Securities LLC, 000 Xxxxx
Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Telephone No. (000) 000-0000, and
Xxxx X. Xxxxxxx, Esq., Bank of America Corporation, 000 Xxxxx Xxxxx Xxxxxx, 30th
Floor, NC1-002-29-01, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Telephone No. (704)
000-0000. The parties hereto acknowledge that the performance by the Trustee of
its duties under this Section 11.05 related to the timely preparation and filing
of Form 10-K is contingent upon such parties observing all applicable deadlines
in the performance of their duties under this Section 11.05. The Trustee shall
have no liability for any loss, expense, damage, claim arising out of or with
respect to any failure to properly prepare, arrange for execution and/or timely
file such Form 10-K, where such failure results from the Trustee's inability or
failure to receive, on a timely basis, any information from any party hereto
needed to prepare, arrange for execution or file such Form 10-K, not resulting
from its own negligence, bad faith or willful misconduct.
Form 10-K requires the registrant to indicate (by checking "yes" or
"no") that it "(1) has filed all reports required to be filed by Section 13 or
15(d) of the Exchange Act during the preceding 12 months (or for such shorter
period that the registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days." The Depositor shall
notify the Trustee in writing, no later than the 15th calendar day of March in
any year in which the Trust is required to file a Form 10-K if the answer to the
questions should be "no". The Trustee shall be entitled to rely on such
representations in preparing, executing and/or filing any Form 10-K.
Section 11.06 Xxxxxxxx-Xxxxx Certification.
-----------------------------
Each Form 10-K shall include a Xxxxxxxx-Xxxxx Certification in the
form attached as Exhibit K required to be included therewith pursuant to the
Xxxxxxxx-Xxxxx Act. The Master Servicer, the Special Servicer, any Additional
Servicer and the Trustee shall, and the Master Servicer, the Special Servicer
and the Trustee shall use commercially reasonable efforts (including enforcement
as such term is described in Section 3.22(c)) to cause each Servicing Function
Participant with which it has entered into a servicing relationship with respect
to the Mortgage Loans to, provide to the Person who signs the Xxxxxxxx-Xxxxx
Certification (the "Certifying Person") a certification in the form attached
hereto as Exhibit K, on which the Certifying Person, the entity for which the
Certifying Person acts as an officer (if the Certifying Person is an
individual), and such entity's officers, directors and Affiliates (collectively
with the Certifying Person, "Certification Parties") can reasonably rely. The
senior officer in charge of the securitization for the Depositor shall serve as
the Certifying Person. In addition, the Master Servicer, the Special Servicer,
any Additional Servicer, the Trustee and any Servicing Function Participant
shall execute a reasonable reliance certificate to enable the Certification
Parties to rely upon each (i) annual compliance statement provided pursuant to
Section 11.09, (ii) annual report on assessment of compliance with servicing
criteria provided pursuant to Section 11.10 and (iii) accountant's report
provided pursuant to Section 11.11, and shall include a certification that each
such annual compliance statement or report discloses any deficiencies or
defaults described to the registered public accountants of the Master Servicer,
the Special Servicer, any Additional Servicer, the Trustee or any Servicing
Function Participant to enable such accountants to render the attestation
reports provided for in Section 11.11. In the event the Master Servicer, the
Special Servicer, any Additional Servicer, the Trustee or any Servicing Function
Participant is terminated or resigns pursuant to the terms of this Agreement, or
any applicable sub-servicing agreement or primary servicing agreement, as the
case may be, such party shall provide a certification to the Certifying Person
pursuant to this Section 11.06 with respect to the period of time it was subject
to this Agreement or the applicable sub-servicing or primary servicing
agreement, as the case may be.
Section 11.07 Form 8-K Filings.
-----------------
Within four (4) Business Days after the occurrence of an event
requiring disclosure on Form 8-K (each such event, a "Reportable Event"), and if
requested by the Depositor, the Trustee shall prepare and file on behalf of the
Trust any Form 8-K, as required by the Exchange Act, provided that the Depositor
shall file the initial Form 8-K in connection with the issuance of the
Certificates. Any disclosure or information related to a Reportable Event or
that is otherwise required to be included on Form 8-K ("Form 8-K Disclosure
Information") shall, pursuant to the paragraph immediately below, be reported by
the parties set forth on Schedule XI hereto to the Depositor and the Trustee and
approved by the Depositor, and the Trustee will have no duty or liability for
any failure hereunder to determine or prepare any Form 8-K Disclosure
Information absent such reporting, direction and approval; provided, however,
that the Trustee shall promptly notify the Depositor of any Form 8-K Disclosure
that it receives.
As set forth on Schedule XI hereto, for so long as the Trust is
subject to the Exchange Act reporting requirements, no later than the end of
business on the second Business Day after the occurrence of a Reportable Event:
(i) the parties listed on Schedule XI hereto shall be required to provide to the
Trustee and the Depositor, to the extent a responsible officer has actual
knowledge thereof, in XXXXX-compatible format, or in such other format as
otherwise agreed upon by the Trustee and the Depositor and such party, the form
and substance of the Form 8-K Disclosure Information described on Schedule XI
hereto applicable to such party; (ii) the parties listed on Schedule XI hereto
shall include with such additional Form 8-K Disclosure ("Additional Form 8-K
Disclosure"), an Additional Disclosure Notification in the form attached hereto
as Schedule XII; and (iii) the Depositor shall approve, as to form an substance,
or disapprove, as the case may be, the inclusion of the Additional Form 8-K
Disclosure on Form 8-K. The Trustee has no duty under this Agreement to monitor
or enforce the performance by the parties listed on Schedule XI hereto of their
duties under this paragraph or proactively solicit or procure from such parties
any Form 8-K Disclosure Information. The Depositor will be responsible for any
reasonable fees assessed and out-of-pocket expenses incurred by the Trustee in
connection with including any Form 8-K Disclosure Information on Form 8-K
pursuant to this paragraph.
After preparing the Form 8-K, the Trustee shall forward
electronically a copy of the Form 8-K to the Depositor for review and approval
no later than the third Business Day after the Reportable Event (but in no event
earlier than 24 hours after having received the Form 8-K Disclosure Information
pursuant to the immediately preceding paragraph). No later than the close of
business on the third Business Day after the Reportable Event, the Depositor
shall notify the Trustee of any changes to or approval of such Form 8-K. No
later than Noon (New York City time) on the fourth Business Day after the
Reportable Event, a duly authorized representative of the Depositor shall sign
the Form 8-K and return an electronic or fax copy of such signed Form 8-K (with
an original executed hard copy to follow by overnight mail) to the Trustee. If a
Form 8-K cannot be filed on time or if a previously filed Form 8-K needs to be
amended, the Trustee will follow the procedures set forth in this Section 11.07.
Promptly after filing with the Commission, the Trustee will, make available on
its internet website a final executed copy of each Form 8-K prepared by the
Trustee. The signing party at the Depositor can be contacted at Xxxxxxx X.
Xxxxx, Banc of America Securities LLC, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx
Xxxxxxxx 00000, Telephone No. (000) 000-0000, and Xxxx X. Xxxxxxx, Esq., Bank of
America Corporation, 000 Xxxxx Xxxxx Xxxxxx, 30th Floor, NC1-002-29-01,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Telephone No. (000) 000-0000. The parties
hereto acknowledge that the performance by the Trustee of its duties under this
Section 11.07 related to the timely preparation and filing of Form 8-K is
contingent upon such parties observing all applicable deadlines in the
performance of their duties under this Section 11.07. The Trustee shall have no
liability for any loss, expense, damage, claim arising out of or with respect to
any failure to properly prepare, arrange for execution and/or timely file such
Form 8-K, where such failure results from the Trustee's inability or failure to
receive, on a timely basis, any information from any party hereto needed to
prepare, arrange for execution or file such Form 8-K, not resulting from its own
negligence, bad faith or willful misconduct.
Section 11.08 Form 15 Filing.
---------------
On or prior to January 30 of the first year in which the Trustee is
able to do so under applicable law, the Trustee shall prepare and file a Form 15
Suspension Notification relating to the automatic suspension of reporting in
respect of the Trust under the Exchange Act. If at the beginning of any year
after the filing of a Form 15 Suspension Notification, if the number of
Certificateholders of record exceeds the number set forth in Section 15(d) of
the Exchange Act that would cause the Trust to again become subject to the
reporting requirements of the Exchange Act, the Trustee shall recommence
preparing and filing reports on Forms 10-D, 10-K and 8-K as required pursuant to
Section 11.04, Section 11.05 and Section 11.07.
With respect to any reporting period occurring after the filing of
Form 15, the obligations of the parties to this Agreement under Sections 11.01,
11.02, 11.04, 11.05, 11.06 and 11.07 shall be suspended for so long as the Trust
is not subject to the reporting requirements of the Exchange Act. The Trustee
shall promptly notify (which notice, notwithstanding the provisions of Section
12.05, may be sent by facsimile, telephone or by email and which shall include
the identity of those Reporting Servicers who did not deliver such information)
the Depositor and each Reporting Servicer that failed to deliver such
information, if all, or any portion of, any required disclosure information to
be included in any Form 8-K, Form 10-D or Form 10-K required to be filed
pursuant to this Agreement is not delivered to it within the delivery deadlines
set forth in this Agreement (including annual compliance statements pursuant to
Section 11.09, annual reports on assessment of compliance with servicing
criteria pursuant to Section 11.10 and attestation reports pursuant to Section
11.11) (exclusive of any grace or cure periods), but only to the extent the
Trustee has actual knowledge that the Servicer or Special Servicer required to
provide such disclosure information has not done so. Such notice does not affect
the tolling of any grace or cure period with respect to the deadline of any
obligation of any party contained in this Article XI.
Section 11.09 Annual Compliance Statements.
-----------------------------
The Trustee, the Master Servicer and the Special Servicer shall, and
the Master Servicer or Special Servicer shall use commercially reasonable
efforts (including enforcement as such term is described in Section 3.22(c)) to
cause each Additional Servicer with which it has entered into a servicing
relationship with respect to the Mortgage Loans to, deliver to the Depositor and
the Trustee on or before March 15 of each year, commencing in March 2007, an
Officer's Certificate stating, as to the Certifying Servicer, that (A) a review
of such Certifying Servicer's activities during the preceding calendar year or
portion thereof and of such Certifying Servicer's performance under this
Agreement, or the applicable sub-servicing agreement or primary servicing
agreement in the case of an Additional Servicer, has been made under such
officer's supervision and (B) to the best of such officer's knowledge, based on
such review, such Certifying Servicer has fulfilled all its obligations under
this Agreement, or the applicable sub-servicing agreement or primary servicing
agreement in the case of an Additional Servicer, in all material respects
throughout such year or portion thereof, or, if there has been a failure to
fulfill any such obligation in any material respect, specifying each such
failure known to such officer and the nature and status thereof. Promptly after
receipt of each such Officer's Certificate, the Depositor shall review each such
Officer's Certificate and, if applicable, consult with such Certifying Servicer
as to the nature of any failures by such Certifying Servicer, or any related
Additional Servicer with which such Certifying Servicer has entered into a
servicing relationship with respect to the Mortgage Loans in the fulfillment of
any of such Certifying Servicer's obligations hereunder or under the applicable
Sub-Servicing Agreement or primary servicing agreement. The obligations of each
Certifying Servicer under this Section apply to the extent that such Certifying
Servicer serviced a Mortgage Loan during the applicable period, whether or not
the Master Servicer, the Special Servicer or Additional Servicer is acting as a
Certifying Servicer at the time such Officer's Certificate is required to be
delivered. In the event the Master Servicer, the Special Servicer or the Trustee
is terminated or resigns pursuant to the terms of this Agreement, such party
shall provide, and the Master Servicer shall use its reasonable efforts to cause
any Certifying Servicer that resigns or is terminated under any applicable
servicing agreement to provide, an annual statement of compliance pursuant to
this Section 11.09 with respect to the period of time that the Master Servicer,
the Special Servicer or the Trustee was subject to this Agreement or the period
of time that the Certifying Servicer was subject to such other servicing
agreement. No Certifying Servicer shall be required to cause the delivery of any
such Officer's Certificate until April 15 in any given year so long as it has
received written confirmation from the Depositor that a Report on Form 10-K is
not required to be filed in respect of the Trust for the preceding calendar
year.
Section 11.10 Annual Reports on Assessment of Compliance with
-----------------------------------------------
Servicing Criteria.
-------------------
(a) On or before March 15 of each year, commencing in March 2007,
the Master Servicer, the Special Servicer and the Trustee, each at its own
expense, shall furnish, and each such party shall use commercially reasonable
efforts (including enforcement as such term is described in Section 3.22(c)) to
cause each Servicing Function Participant with which it has entered into a
servicing relationship with respect to the Mortgage Loans to furnish (each, a
"Reporting Servicer"), to the Trustee and the Depositor, a report on an
assessment of compliance with the Relevant Servicing Criteria that contains (A)
a statement by such Reporting Servicer of its responsibility for assessing
compliance with the Relevant Servicing Criteria, (B) a statement that such
Reporting Servicer used the Relevant Servicing Criteria as the basis for such
report, (C) such Reporting Servicer's assessment of compliance with the Relevant
Servicing Criteria as of and for the period ending the end of the fiscal year
covered by the Form 10-K required to be filed pursuant to Section 11.05,
including, if there has been any material instance of noncompliance with the
Relevant Servicing Criteria, a discussion of each such failure and the nature
and status thereof, and (D) a statement that a registered public accounting firm
has issued an attestation report on such Reporting Servicer's assessment of
compliance with the Relevant Servicing Criteria as of and for such period.
Each such report shall be addressed to the Depositor and signed by
an authorized officer of the applicable company, and shall address each of the
Relevant Servicing Criteria specified in Schedule VIII hereto delivered to the
Depositor on the Closing Date. Promptly after receipt of each such report, (i)
the Depositor shall review each such report and, if applicable, consult with
each Reporting Servicer as to the nature of any material instance of
noncompliance with the Servicing Criteria applicable to it, and (ii) the Trustee
shall confirm that the assessments, taken individually address the Relevant
Servicing Criteria and notify the Depositor of any exceptions. No Reporting
Servicer shall be required to cause the delivery of any such assessments until
April 15 in any given year so long as it has received written confirmation from
the Depositor that a Report on Form 10-K is not required to be filed in respect
of the Trust for the preceding calendar year.
(b) On the Closing Date, the Master Servicer, the Special Servicer
and the Trustee shall furnish to the Depositor and the Trustee the Relevant
Servicing Criteria applicable to it, in the form of Schedule VIII hereto
appropriately completed (indicating thereon any Servicing Function Participant
that the Master Servicer, Special Servicer or Trustee has entered into a
servicing relationship).
(c) No later than the end of each fiscal year for the Trust, the
Master Servicer and the Special Servicer shall notify the Trustee and the
Depositor and the other parties to this Agreement as to the name of each
Servicing Function Participant utilized by it, and the Trustee shall notify the
Depositor as to the name of each Servicing Function Participant utilized by it,
and each such notice will specify what specific Servicing Criteria will be
addressed in the report on assessment of compliance prepared by such Servicing
Function Participant. When the Master Servicer, the Special Servicer and the
Trustee submit their assessments pursuant to Section 11.10(a), the Master
Servicer, the Special Servicer and the Trustee, as applicable, will also at such
time use commercially reasonable efforts to include the assessment (and related
attestation pursuant to Section 11.11) of each Servicing Function Participant
engaged by it.
Section 11.11 Annual Independent Public Accountants' Servicing
------------------------------------------------
Report.
-------
On or before March 15 of each year, commencing in March 2007, the
Master Servicer, the Special Servicer and the Trustee, each at its own expense,
shall cause, and the Master Servicer, the Special Servicer and the Trustee shall
use commercially reasonable efforts (including enforcement as such term is
described in Section 3.22(c)) to cause each Servicing Function Participant with
which it has entered into a servicing relationship with respect to the Mortgage
Loans to cause, a registered public accounting firm (which may also render other
services to the Master Servicer, the Special Servicer, the Trustee or the
applicable Servicing Function Participant, as the case may be) and that is a
member of the American Institute of Certified Public Accountants to furnish a
report to the Trustee and the Depositor to the effect that (i) it has obtained a
representation regarding certain matters from the management of such Reporting
Servicer, which includes an assertion that such Reporting Servicer has complied
with the Relevant Servicing Criteria in all material respects and (ii) on the
basis of an examination conducted by such firm in accordance with standards for
attestation engagements issued or adopted by the Public Company Accounting
Oversight Board, it is issuing an opinion as to whether such Reporting
Servicer's assessment of compliance with the Relevant Servicing Criteria was
fairly stated in all material respects. In the event that an overall opinion
cannot be expressed, such registered public accounting firm shall state in such
report why it was unable to express such an opinion. Each such related
accountant's attestation report shall be made in accordance with Rules
1-02(a)(3) and 2-02(g) of Regulation S-X under the Securities Act and the
Exchange Act. Such report must be available for general use and not contain
restricted use language.
Promptly after receipt of such report from the Master Servicer, the
Special Servicer, the Trustee or any Servicing Function Participant, (i) the
Depositor shall review the report and, if applicable, consult with the Master
Servicer, the Special Servicer or the Trustee as to the nature of any defaults
by the Master Servicer, the Special Servicer, the Trustee or any Servicing
Function Participant with which it has entered into a servicing relationship
with respect to the Mortgage Loans, as the case may be, in the fulfillment of
any of the Master Servicer's, the Special Servicer's, the Trustee's, the
Trustee's or the applicable Servicing Function Participants' obligations
hereunder or under the applicable sub-servicing or primary servicing agreement,
and (ii) the Trustee shall confirm that each accountants' attestation report
submitted pursuant to this Section relates to an assessment of compliance
meeting the requirements of Section 11.10 and notify the Depositor of any
exceptions.
Section 11.12 Indemnification.
----------------
Each of the Master Servicer, the Special Servicer and the Trustee
shall indemnify and hold harmless each Certification Party from and against any
claims, losses, damages, penalties, fines, forfeitures, legal fees and expenses
and related costs, judgments and other costs and expenses incurred by such
Certification Party arising out of an actual breach by the Master Servicer, the
Special Servicer or the Trustee, as the case may be, of its obligations under
this Article XI.
The Master Servicer and the Special Servicer shall use commercially
reasonable efforts (including enforcement as such term is described in Section
3.22(c)) to cause each Additional Servicer and each Servicing Function
Participant with which, in each case, it has entered into a servicing
relationship with respect to the Mortgage Loans to indemnify and hold harmless
each Certification Party from and against any and all claims, losses, damages,
penalties, fines, forfeitures, legal fees and expenses and related costs,
judgments and any other costs, fees and expenses incurred by such Certification
Party arising out of: (i) a breach of its obligations to provide any of the
annual compliance statements or annual assessment of compliance reports or
attestation reports pursuant to the applicable sub-servicing or primary
servicing agreement or (ii) any failure by a Servicer (as defined in Section
11.02(b)) to identify a Servicing Function Participant pursuant to Section
11.02(c).
If the indemnification provided for herein is unavailable or
insufficient to hold harmless any Certification Party, then the Master Servicer,
the Special Servicer, the Trustee, any Additional Servicer or other Servicing
Function Participant (the "Performing Party") shall contribute to the amount
paid or payable to the Certification Party as a result of the losses, claims,
damages or liabilities of the Certification Party in such proportion as is
appropriate to reflect the relative fault of the Certification Party on the one
hand and the Performing Party on the other in connection with a breach of the
Performing Party's obligations pursuant to Sections 11.06, 11.09, 11.10 or 11.11
(or breach of its obligations under the applicable sub-servicing or primary
servicing agreement to provide any of the annual compliance statements or annual
servicing criteria compliance reports or attestation reports). The Master
Servicer and Special Servicer shall use commercially reasonable efforts
(including enforcement as such term is described in Section 3.22(c)) to cause
each Additional Servicer or Servicing Function Participant, in each case, with
which it has entered into a servicing relationship with respect to the Mortgage
Loans to agree to the foregoing indemnification and contribution obligations.
This Section 11.12 shall survive the termination of this Agreement or the
earlier resignation or removal of the Master Servicer or the Special Servicer.
Section 11.13 Signatures; Article XI Notices.
-------------------------------
Each Form 8-K report and Form 10-D report shall be signed by the
Depositor. The Depositor shall provide its signature to the Trustee by
electronic or fax transmission (with hard copy to follow by overnight mail) no
later than the 13th calendar day following the related Distribution Date for
Form 10-D, and not later than noon on the date of filing for Form 8-K (provided,
that in each case the Trustee shall not file the related form until the
Depositor has given its approval thereof). If a Form 8-K or Form 10-D cannot be
filed on time or if a previously filed Form 8-K or Form 10-D needs to be
amended, the Trustee will follow the procedures set forth in this Article XI.
With respect to any notice required to be delivered by the Trustee
to the Depositor pursuant to Article XI, the Trustee may deliver such notice,
notwithstanding any contrary provision in Section 12.05 via facsimile to (704)
386-1094, via email to xxxxxxx.x.xxxxx@xxxxxxxxxxxxx.xxx or telephonically by
calling Xxxxxxx Xxxxx at (000) 000-0000.
Section 11.14 Amendments.
-----------
This Article XI (other than with respect to the reports and
certifications set forth in Section 11.09 and Section 11.11) may be amended by
the parties hereto pursuant to Section 12.01 for purposes of complying with
Regulation AB and the Xxxxxxxx-Xxxxx Act and/or to conform to standards
developed within the commercial mortgage-backed securities market without any
Opinions of Counsel, Officer's Certificates, Rating Agency Confirmations or the
consent of any Certificateholder, notwithstanding anything to the contrary
contained in this Agreement.
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 Amendment.
----------
(a) This Agreement may be amended from time to time by the mutual
agreement of the parties hereto, without the consent of any of the
Certificateholders or the One Stamford Forum Note B Holder, (i) to cure any
ambiguity, (ii) to correct, modify or supplement any provision herein that may
be defective or may be inconsistent with any other provision herein, (iii) to
add any other provisions with respect to matters or questions arising hereunder
that shall not be inconsistent with the provisions hereof, (iv) to relax or
eliminate any requirement hereunder imposed by the REMIC Provisions if the REMIC
Provisions are amended or clarified such that any such requirement may be
relaxed or eliminated; (v) if such amendment, as evidenced by an Opinion of
Counsel delivered to the Trustee and the REMIC Administrator, is reasonably
necessary to comply with any requirements imposed by the Code or any successor
or amendatory statute or any temporary or final regulation, revenue ruling,
revenue procedure or other written official announcement or interpretation
relating to federal income tax laws or any such proposed action that, if made
effective, would apply retroactively to REMIC I or REMIC II at least from the
effective date of such amendment, or would be necessary to avoid the occurrence
of a prohibited transaction or to reduce the incidence of any tax that would
arise from any actions taken with respect to the operation of REMIC I or REMIC
II; (vi) to modify, add to or eliminate any provisions of Section 5.02(d)(i),
(ii) or (iii); or (vii) for any other purpose; provided that such amendment
(other than any amendment for the specific purposes described in clauses (v) and
(vi) above) shall not, as evidenced by an Opinion of Counsel obtained by or
delivered to the Trustee, adversely affect in any material respect the interests
of any Certificateholder without such Certificateholder's written consent;
provided further that such amendment shall not adversely affect in any material
respect the rights and obligations of the Mortgage Loan Seller without the
Mortgage Loan Seller's written consent; provided further that such amendment
shall not adversely affect in any material respect the rights and obligations of
the One Stamford Forum Note B Holder without the One Stamford Forum Note B
Holder's written consent; and provided further that such amendment (other than
any amendment for any of the specific purposes described in clauses (i) through
(vi) above) shall not result in a downgrade, qualification (if applicable) or
withdrawal of any rating then assigned to any Class of Certificates by any
Rating Agency (as evidenced by written confirmation to such effect from each
Rating Agency obtained by or delivered to the Trustee).
(b) This Agreement may also be amended from time to time by the
mutual agreement of the parties hereto, with the consent of the Holders of
Certificates entitled to at least 51% of the Voting Rights allocated to the
affected Classes, for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Agreement or of modifying in
any manner the rights of the Holders of Certificates or the One Stamford Forum
Note B Holders; provided, however, that no such amendment shall (i) reduce in
any manner the amount of, or delay the timing of, payments received or advanced
on the Mortgage Loans and any REO Properties that are required to be distributed
on any Certificate without the written consent of the Holder of such
Certificate, (ii) adversely affect in any material respect the interests of the
Holders of any Class of Certificates in a manner other than as described in
clause (b)(i) without the written consent of the Holders of all Certificates of
such Class, (iii) change the definition of the Servicing Standard, without the
written consent of the Holders of all Certificates outstanding, or (iv) modify
the provisions of this Section 12.01 without the written consent of the Holders
of all Certificates then outstanding. Notwithstanding any other provision of
this Agreement, for purposes of the giving or withholding of consents pursuant
to this Section 12.01, Certificates registered in the name of the Depositor, the
Master Servicer, the Special Servicer or any of their respective Affiliates
shall be entitled to the same Voting Rights with respect to matters described
above as they would if any other Person held such Certificates. For purposes of
this Section 12.01(b), a Class of Certificates is an "affected Class" if and
only if it would, as the result of any such amendment, experience any of the
effects described in clauses (i), (ii) and (iii) of this Section 12.01(b).
(c) At the direction of the Holders of Certificates entitled to 100%
of the Voting Rights allocated to the affected Classes, and with the agreement
of all of the parties hereto (none of which shall withhold its agreement unless
its obligations hereunder would be materially increased), the Agreement shall be
amended for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement or of modifying in any
manner the rights of the Holders of Certificates, including without limitation,
(i) to cause such Classes to be restructured, (ii) to create in connection with
any restructuring one or more new classes of Certificates, which may include,
without limitation, one or more classes of Certificates entitled to payments of
principal on a priority basis from collections in respect of some or all of the
Mortgage Loans, (iii) to make in connection with any such restructuring one or
more additional REMIC elections with respect to the Trust Fund, (iv) to provide
for the book-entry registration of any such existing or newly created classes of
Certificates, and (v) to provide for any holders of any Classes of
Non-Registered Certificates remaining as such after giving effect to such
amendment to receive or have the right to request to receive any statements,
reports or other information that the holders of the Class D, Class E, Class F,
Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class O and Class
P Certificates are entitled to receive or request to receive under this
Agreement. For purposes of this Section 12.01(c), a Class of Certificates is an
"affected Class" if and only if it would, as the result of any such amendment,
experience any of the effects described in clauses (i), (ii) and (iii) of
Section 12.01(b). Any restructuring pursuant to this Section 12.01(c) shall
require, at the expense of the requesting holders, the prior written approval of
each Rating Agency and confirmation of the ratings of each such Class of
Certificates (taking into account such restructuring), including confirmation
that such restructuring will not result in the downgrade, qualification (if
applicable) or withdrawal of the ratings then assigned to the Class 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.
(d) Notwithstanding any contrary provision of this Agreement,
neither the Trustee nor the REMIC Administrator shall consent to any amendment
to this Agreement unless it shall first have obtained or been furnished with an
Opinion of Counsel to the effect that such amendment or the exercise of any
power granted to any party hereto in accordance with such amendment will not
result in the imposition of a tax on REMIC I or REMIC II pursuant to the REMIC
Provisions or cause REMIC I or REMIC II to fail to qualify as a REMIC at any
time that any Certificates are outstanding or either Grantor Trust to fail to
qualify as a grantor trust at any time that any Certificates are outstanding.
(e) Promptly after the execution of any such amendment, the Trustee
shall furnish a copy of the amendment to each Certificateholder and the One
Stamford Forum Note B Holder.
(f) It shall not be necessary for the consent of Certificateholders
under this Section 12.01 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to
such reasonable regulations as the Trustee may prescribe; provided that such
consents shall be in writing.
(g) The Trustee may but shall not be obligated to enter into any
amendment pursuant to this Section 12.01 that affects its rights, duties and
immunities under this Agreement or otherwise.
(h) The cost of any Opinion of Counsel to be delivered pursuant to
Section 12.01(a) or (d) shall be borne by the Person seeking the related
amendment, except that if the Trustee requests any amendment of this Agreement
in furtherance of the rights and interests of Certificateholders, the cost of
any Opinion of Counsel required in connection therewith pursuant to Section
12.01(a) or (d) shall be payable out of the Distribution Account.
Section 12.02 Recordation of Agreement; Counterparts.
---------------------------------------
(a) To the extent permitted by applicable law, this Agreement is
subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Master Servicer at the expense of the Trust on direction by the
Trustee, but only (i) upon direction accompanied by an Opinion of Counsel (the
reasonable cost of which may be paid out of the Distribution Account) to the
effect that such recordation materially and beneficially affects the interests
of the Certificateholders and (ii) upon consent of the Directing
Certificateholder. It is acknowledged that the Trustee has no obligation to
monitor whether such recordation in necessary under this Section 12.02.
(b) For the purpose of facilitating the recordation of this
Agreement as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
Section 12.03 Limitation on Rights of Certificateholders.
-------------------------------------------
(a) The death or incapacity of any Certificateholder or One Stamford
Forum Note B Holder shall not operate to terminate this Agreement or the Trust,
nor entitle such Certificateholder's or One Stamford Forum Note B Holder's legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the Trust, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
(b) No Certificateholder or One Stamford Forum Note B Holder shall
have any right to vote (except as expressly provided for herein) or in any
manner otherwise control the operation and management of the Trust Fund, or the
obligations of the parties hereto, nor shall anything herein set forth, or
contained in the terms of the Certificates, be construed so as to constitute the
Certificateholders and/ or the One Stamford Forum Note B Holder from time to
time as partners or members of an association; nor shall any Certificateholder
or One Stamford Forum Note B Holder be under any liability to any third party by
reason of any action taken by the parties to this Agreement pursuant to any
provision hereof.
(c) No Certificateholder or One Stamford Forum Note B Holder shall
have any right by virtue of any provision of this Agreement to institute any
suit, action or proceeding in equity or at law upon or under or with respect to
this Agreement or any Loan, unless, with respect to any suit, action or
proceeding upon or under or with respect to this Agreement, such Holder or One
Stamford Forum Note B Holder previously shall have given to the Trustee a
written notice of default hereunder, and of the continuance thereof, as
hereinbefore provided, and (except in the case of a default by the Trustee) the
Holders of Certificates entitled to at least 25% of the Voting Rights shall have
made written request upon the Trustee to institute such action, suit or
proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs, expenses
and liabilities to be incurred therein or thereby, and the Trustee, for 60 days
after its receipt of such notice, request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or proceeding. It is
understood and intended, and expressly covenanted by each Certificateholder with
every other Certificateholder and the Trustee, that no one or more Holders of
Certificates shall have any right in any manner whatsoever by virtue of any
provision of this Agreement to affect, disturb or prejudice the rights of the
Holders of any other of such Certificates, or to obtain or seek to obtain
priority over or preference to any other such Holder, which priority or
preference is not otherwise provided for herein, or to enforce any right under
this Agreement, except in the manner herein provided and for the equal, ratable
and common benefit of all Certificateholders. For the protection and enforcement
of the provisions of this Section 12.03(c), each and every Certificateholder and
the Trustee shall be entitled to such relief as can be given either at law or in
equity.
Section 12.04 Governing Law.
--------------
This Agreement and the Certificates shall be construed in accordance
with the internal laws of the State of New York applicable to agreements made
and to be performed in said State, and the obligations, rights and remedies of
the parties hereunder shall be determined in accordance with such laws.
Section 12.05 Notices.
--------
Any communications provided for or permitted hereunder shall be in
writing and, unless otherwise expressly provided herein, shall be deemed to have
been duly given when delivered to:
(i) in the case of Banc of America Commercial Mortgage Inc., 000
Xxxxx Xxxxx Xxxxxx, XX0-000-00-00, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000,
Attention: Xxxxxxx Xxxxx, telecopy number: (000) 000-0000 (with copy to
Xxxx Xxxxxxx, Esq., Assistant General Counsel, Bank of America
Corporation, Bank of America Corporate Center, 000 Xxxxx Xxxxx Xxxxxx,
30th Floor, NC1-002-29-01, Charlotte, North Carolina 28255), telecopy
number: (000) 000-0000 and with copy to: Xxxxx X. XxXxxx, Esq.,
Cadwalader, Xxxxxxxxxx & Xxxx LLP, 000 Xxxx Xxxxx Xxxxxx, 00xx Xxxxx,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
(ii) in the case of the Master Servicer, Bank of America, National
Association, Capital Markets Servicing Group, NC1-026-06-01, 000 Xxxx
Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention:
Servicing Manager, telecopy number: (000) 000-0000, Reference: Banc of
America Commercial Mortgage Inc., Commercial Mortgage Pass-Through
Certificates, Series 2006-3 and with copy to: Xxxxx X. XxXxxx, Esq.,
Cadwalader, Xxxxxxxxxx & Xxxx LLP, 000 Xxxx Xxxxx Xxxxxx, 00xx Xxxxx,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000;
(iii) in the case of the Special Servicer, LNR Partners, Inc., 0000
Xxxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxx Xxxxx, Xxxxxxx 00000, Attention:
Xxxxxxxx Xxxxxxx, telecopy number: (000) 000-0000;
(iv) in the case of the Trustee and REMIC Administrator, Xxxxx Fargo
Bank, N.A., 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention:
Corporate Trust Services (CMBS), Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2006-3, telecopy
number: (000) 000-0000;
(v) in the case of the Rating Agencies, (A) Fitch Ratings, Xxx Xxxxx
Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Commercial
Mortgage-Backed Securities Surveillance, telecopy number: (000) 000-0000;
(B) Standard & Poor's Ratings Services, Inc., 00 Xxxxx Xxxxxx, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000-0000, Attention: Commercial Mortgage Group
Surveillance Manager, telecopy number: (000) 000-0000;
(vi) in the case of the initial Directing Certificateholder,
American Capital Strategies, Ltd., Two Bethesda Metro Center, Xxxxxxxx,
Xxxxxxxx 00000, Attention: Xxxxxxx X. Xxxxxx, telecopy number: (301)
654-6714;
(vii) in the case of the initial One Stamford Forum Controlling
Holder, Banc of America Structured Notes, Inc. 000 Xxxxx Xxxxx Xxxxxx,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Xxxxx Xxxxxxx, telecopy
number: (000) 000-0000;
or as to each such Person such other address as may hereafter be furnished by
such Person to the parties hereto in writing. Any communication required or
permitted to be delivered to a Certificateholder shall be deemed to have been
duly given when mailed first class, postage prepaid, to the address of such
Holder as shown in the Certificate Register.
Section 12.06 Severability of Provisions.
---------------------------
If any one or more of the covenants, agreements, provisions or terms
of this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
Section 12.07 Successors and Assigns; Beneficiaries.
--------------------------------------
The provisions of this Agreement shall be binding upon and inure to
the benefit of the respective successors and assigns of the parties hereto, and
all such provisions shall inure to the benefit of the Certificateholders. Each
One Stamford Forum Note B Holder and any designees thereof acting on behalf of
or exercising the rights of the One Stamford Forum Note B Holder shall be
third-party beneficiaries to this Agreement with respect to their rights as
specifically provided for herein and may directly enforce such rights. Except as
specifically contemplated by Sections 3.22, 3.24, 6.03 and 8.05, no other
person, including, without limitation, any Mortgagor, shall be entitled to any
benefit or equitable right, remedy or claim under this Agreement.
Section 12.08 Article and Section Headings.
-----------------------------
The article and section headings herein are for convenience of
reference only, and shall not limit or otherwise affect the meaning hereof.
Section 12.09 Notices to and from Rating Agencies.
------------------------------------
(a) The Trustee shall promptly provide notice to each Rating Agency
with respect to each of the following of which it has actual knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Event of Default hereunder that has not
been cured;
(iii) the resignation or termination of the Master Servicer, the
Special Servicer or the REMIC Administrator and the appointment of a
successor;
(iv) any change in the location of the Distribution Account, the
REMIC I Distribution Account, the REMIC II Distribution Account, the
Excess Interest Distribution Account or the Excess Liquidation Proceeds
Account;
(v) the final payment to any Class of Certificateholders; and
(vi) the repurchase of any Mortgage Loan by the Mortgage Loan Seller
pursuant to Section 2.03.
(b) The Master Servicer shall promptly provide notice to each Rating
Agency with respect to each of the following of which it has actual knowledge:
(i) the resignation or removal of the Trustee and the appointment of
a successor; and
(ii) any change in the location of the Certificate Account.
(c) The Trustee, the Master Servicer and the Special Servicer, as
applicable, shall furnish to each Rating Agency, with respect to each Loan such
information as the Rating Agency shall reasonably request and that the Trustee,
the Master Servicer or the Special Servicer can reasonably provide in accordance
with applicable law and without waiving any attorney-client privilege relating
to such information. The Trustee, the Master Servicer and the Special Servicer,
as applicable, may include any reasonable disclaimer they deem appropriate with
respect to such information.
(d) Each of the Master Servicer and the Special Servicer shall
promptly furnish to each Rating Agency copies of the following:
(i) each of its annual statements as to compliance described in
Section 11.09; and
(ii) each of its annual independent public accountants' servicing
reports described in Section 11.11, if any.
In addition, as and to the extent required by Section 3.12(a) and
(b), each of the Master Servicer and the Special Servicer shall promptly furnish
to each Rating Agency copies or summaries (in such format as will be acceptable
to the Rating Agency) of any of the written reports (including, without
limitation, reports regarding property inspections) prepared, and any of the
quarterly and annual or other periodic operating statements and rent rolls
collected, by it pursuant to Section 3.12(b).
(e) The Trustee shall promptly furnish each Rating Agency on a
monthly basis, to the extent not made available on the Trustee's Website, copies
of the statements to the Holders of the REMIC II Certificates required by the
first paragraph of Section 4.02(a).
(f) To the extent reasonably possible, all information and reports
delivered or made available to the Rating Agencies, the One Stamford Forum
Controlling Holder, the One Stamford Forum Note B Holder or a Holder of a
Non-Registered Certificate (except a Class V, Class R-I or Class R-II
Certificate) (if requested by such Holder), by any of the Trustee, the Master
Servicer or the Special Servicer pursuant to this Section 12.09, shall be so
delivered or otherwise made available through an electronic medium.
(g) Each Rating Agency shall provide to the Trustee, upon its
request, a listing of the then current rating on any Certificate then
outstanding.
Section 12.10 Requests for Information; Standing Requests.
--------------------------------------------
(a) Any Holder of a Non-Registered Certificate (except a Class V,
Class R-I or Class R-II Certificate) shall be entitled to, upon request to the
Master Servicer, receive a copy from the Master Servicer, of any notice or
report to be delivered hereunder to the Directing Certificateholder, at the
requesting party's expense.
(b) For the avoidance of doubt, it is noted that to the extent that
any Rating Agency, the One Stamford Forum Controlling Holder, the One Stamford
Forum Note B Holder or any Holder of a Non-Registered Certificate (except a
Class V, Class R-I or Class R-II Certificate) is stated herein to be entitled to
obtain from the Master Servicer or the Special Servicer, upon request, any
particular report or other item of information obtained or prepared with respect
to the Loans by the parties to this Agreement in the course of their performance
hereof, such request by such Person may take the form of a standing request to
the Master Servicer or the Special Servicer, as the case may be, to receive all
such reports or items until further notice.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers or representatives thereunto duly
authorized, in each case as of the day and year first above written.
BANC OF AMERICA COMMERCIAL
MORTGAGE INC., as Depositor,
By: /s/ Xxxx X. Xxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
BANK OF AMERICA, NATIONAL
ASSOCIATION, as Master Servicer,
By: /s/ Xxxx X. Xxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxx
Title: Principal
LNR PARTNERS, INC., as Special Servicer,
By: /s/ Xxxx X. Xxxxxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Vice President
XXXXX FARGO BANK, N.A., as Trustee and
REMIC Administrator,
By: /s/ Xxxx X. Xxxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBURG )
On the 2nd day of August 2006, before me, a notary public in and for
said State, personally appeared Xxxx X. Xxxxxx known to me to be a Vice
President of BANC OF AMERICA COMMERCIAL MORTGAGE INC. one of the entities that
executed the within instrument, and also known to me to be the person who
executed it on behalf of such entity, and acknowledged to me that such person
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxxxxx X. Xxxxxxx
-----------------------
Notary Public
[Notarial Seal]
My commission expires:
February 4, 0000
----------------
XXXXX XX XXXXX XXXXXXXX )
) ss.:
COUNTY OF MECKLENBURG )
On the 2nd day of August 2006, before me, a notary public in and for
said State, personally appeared Xxxx X. Xxxxxx known to me to be a Principal of
BANK OF AMERICA, NATIONAL ASSOCIATION, one of the entities that executed the
within instrument, and also known to me to be the person who executed it on
behalf of such entity, and acknowledged to me that such person executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxxxxx X. Xxxxxxx
-----------------------
Notary Public
[Notarial Seal]
My commission expires:
February 4, 0000
----------------
XXXXX XX XXXXX )
) ss.:
COUNTY OF DADE )
On the 28th day of July 2006, before me, a notary public in and for
said State, personally appeared Xxxx X. Xxxxxxxxx, known to me to be a Vice
President of LNR PARTNERS, INC., one of the entities that executed the within
instrument, and also known to me to be the person who executed it on behalf of
such entity, and acknowledged to me that such person executed the within
instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxx X. Xxxxxx
-----------------------
Notary Public
[Notarial Seal]
My commission expires:
June 6, 0000
------------
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On the 2nd day of August 2006, before me, a notary public in and for
said State, personally appeared Xxxx X. Xxxxxxx, known to me to be a Vice
President of XXXXX FARGO BANK, N.A. which executed the within instrument, and
also known to me to be the person who executed it on behalf of such entity, and
acknowledged to me that such person executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxx X. Xxxxxx
-----------------------
Notary Public
[Notarial Seal]
My commission expires:
Jan. 3, 2009
------------
Exhibit A-1
Form of Class A-1 Certificate
CLASS A-1 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2006-3
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
[5.6850]% per annum Certificate as of the Issue Date:
$[42,000,000]
Date of Pooling and Servicing Agreement: Class Principal Balance of all the
August 1, 2006 Class A-1 Certificates as of the Issue
Date:
$[42,000,000]
Cut-off Date: Initial Pool Balance: $[1,964,746,808]
August 1, 2006
Issue Date:
August 2, 2006
First Distribution Date:
September 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Special Servicer:
LNR Partners, Inc.
Certificate No.: A-1-[1] CUSIP No.: [________]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, NATIONAL ASSOCIATION, LNR
PARTNERS, INC., XXXXX FARGO BANK, N.A. OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:
--------------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-1 Certificates referred to in the within mentioned
Agreement.
Dated: August 2, 2006
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:
--------------------------------------
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
______________________________________________________.
Dated:
-------------------------------------------
Signature by or on behalf of Assignor
-------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ______________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and
notices should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-2
Form of Class A-2 Certificate
CLASS A-2 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2006-3
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
[5.8060]% per annum Certificate as of the Issue Date:
$[43,500,000]
Date of Pooling and Servicing Agreement: Class Principal Balance of all the
August 1, 2006 Class A-2 Certificates as of the Issue
Date:
$[43,500,000]
Cut-off Date: Initial Pool Balance: $[1,964,746,808]
August 1, 2006
Issue Date:
August 2, 2006
First Distribution Date:
September 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Special Servicer:
LNR Partners, Inc.
Certificate No.: A-2-[1] CUSIP No.: [________]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, NATIONAL ASSOCIATION, LNR
PARTNERS, INC., XXXXX FARGO BANK, N.A. OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:
--------------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-2 Certificates referred to in the within mentioned
Agreement.
Dated: August 2, 2006
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:
--------------------------------------
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
______________________________________________________.
Dated:
-------------------------------------------
Signature by or on behalf of Assignor
-------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ______________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and
notices should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-3
Form of Class A-3 Certificate
CLASS A-3 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2006-3
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
[Variable] Certificate as of the Issue Date:
$[60,000,000]
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class A-3 Certificates as of the Issue
August 1, 2006 Date:
$[60,000,000]
Cut-off Date: Initial Pool Balance: $[1,964,746,808]
August 1, 2006
Issue Date:
August 2, 2006
First Distribution Date:
September 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Special Servicer:
LNR Partners, Inc.
Certificate No.: A-3-[1] CUSIP No.: [________]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, NATIONAL ASSOCIATION, LNR
PARTNERS, INC., XXXXX FARGO BANK, N.A. OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:
--------------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-3 Certificates referred to in the within mentioned
Agreement.
Dated: August 2, 2006
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:
--------------------------------------
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
______________________________________________________.
Dated:
-------------------------------------------
Signature by or on behalf of Assignor
-------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ______________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and
notices should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-4
Form of Class A-4 Certificate
CLASS A-4 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2006-3
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
[Variable] Certificate as of the Issue Date:
$[1,010,683,000]
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class A-4 Certificates as of the Issue
August 1, 2006 Date:
$[500,000,000][500,000,000][10,683,000]
Cut-off Date: Initial Pool Balance: $[1,964,746,808]
August 1, 2006
Issue Date:
August 2, 2006
First Distribution Date:
September 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Special Servicer:
LNR Partners, Inc.
Certificate No.: A-4-[1][2][3] CUSIP No.: [________]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, NATIONAL ASSOCIATION, LNR
PARTNERS, INC., XXXXX FARGO BANK, N.A. OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:
--------------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-4 Certificates referred to in the within mentioned
Agreement.
Dated: August 2, 2006
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:
--------------------------------------
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
______________________________________________________.
Dated:
-------------------------------------------
Signature by or on behalf of Assignor
-------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ______________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and
notices should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-5
Form of Class A-1A Certificate
CLASS A-1A COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2006-3
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
[Variable] Certificate as of the Issue Date:
$[219,139,000]
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class A-1A Certificates as of the
August 1, 2006 Issue Date:
$[219,139,000]
Cut-off Date: Initial Pool Balance: $[1,964,746,808]
August 1, 2006
Issue Date:
August 2, 2006
First Distribution Date:
September 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Special Servicer:
LNR Partners, Inc.
Certificate No.: A-1A-[1] CUSIP No.: [________]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, NATIONAL ASSOCIATION, LNR
PARTNERS, INC., XXXXX FARGO BANK, N.A. OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:
--------------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-1A Certificates referred to in the within
mentioned Agreement.
Dated: August 2, 2006
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:
--------------------------------------
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
______________________________________________________.
Dated:
-------------------------------------------
Signature by or on behalf of Assignor
-------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ______________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and
notices should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-6
Form of Class XW Certificate
CLASS XW COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2006-3
[RULE 144A](1) [REG S](2) CERTIFICATE
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Notional Amount of this
[Variable] Certificate as of the Issue Date:
$[500,000,000] $[500,000,000]
$[500,000,000] $[464,746,808]
Date of Pooling and Servicing Class Notional Amount of all the Class
Agreement: XC Certificates as of the Issue Date:
August 1, 2006 $[1,964,746,808]
Cut-off Date: Initial Pool Balance: $[1,964,746,808]
August 1, 2006
Issue Date:
August 2, 2006
First Distribution Date:
September 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Special Servicer:
LNR Partners, Inc.
Certificate No.: XW-[1][2][3][4] CUSIP No.: [__________](1)
[__________](2)
----------
(1) For Rule 144A Book-Entry Certificates only.
(2) For Reg S Book-Entry Certificates only.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, NATIONAL ASSOCIATION, LNR
PARTNERS, INC., XXXXX FARGO BANK, N.A. OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED.
THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND DOES NOT
ENTITLE THE HOLDER HEREOF TO ANY DISTRIBUTIONS OF PRINCIPAL. THE HOLDER HEREOF
WILL BE ENTITLED TO DISTRIBUTIONS OF INTEREST ACCRUED AS PROVIDED IN THE
AGREEMENT REFERRED TO HEREIN ON THE CERTIFICATE NOTIONAL AMOUNT OF THIS
CERTIFICATE, WHICH AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the notional
principal amount of this Certificate (its "Certificate Notional Amount") as of
the Issue Date by the aggregate notional principal balance of all the
Certificates of the same Class as this Certificate (their "Class Notional
Amount") as of the Issue Date) in that certain beneficial ownership interest in
the Trust Fund evidenced by all the Certificates of the same Class as this
Certificate. The Trust Fund was created and the Certificates were issued
pursuant to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Banc of America Commercial Mortgage Inc., as Depositor, and
the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator identified above. To the extent not defined herein, the
capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar appointed as provided in the Agreement or
such other location as may be specified in such notice.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:
--------------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class XW Certificates referred to in the within
mentioned Agreement.
Dated: August 2, 2006
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:
--------------------------------------
Authorized Signatory
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred for, or
issued in exchange for or upon Remaining Principal
transfer of, an interest in this Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
______________________________________________________.
Dated:
-------------------------------------------
Signature by or on behalf of Assignor
-------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ______________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and
notices should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-7
Form of Class A-M Certificate
CLASS A-M COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2006-3
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
[Variable] Certificate as of the Issue Date:
$[196,475,000]
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class A-M Certificates as of the Issue
August 1, 2006 Date:
$[196,475,000]
Cut-off Date: Initial Pool Balance: $[1,964,746,808]
August 1, 2006
Issue Date:
August 2, 2006
First Distribution Date:
September 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Special Servicer:
LNR Partners, Inc.
Certificate No.: A-M-[1] CUSIP No.: [________]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, NATIONAL ASSOCIATION, LNR
PARTNERS, INC., XXXXX FARGO BANK, N.A. OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF OF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:
--------------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-M Certificates referred to in the within mentioned
Agreement.
Dated: August 2, 2006
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:
--------------------------------------
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
______________________________________________________.
Dated:
-------------------------------------------
Signature by or on behalf of Assignor
-------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ______________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and
notices should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-8
Form of Class A-J Certificate
CLASS A-J COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2006-3
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
[Variable] Certificate as of the Issue Date:
$[152,268,000]
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class A-J Certificates as of the Issue
August 1, 2006 Date:
$[152,268,000]
Cut-off Date: Initial Pool Balance: $[1,964,746,808]
August 1, 2006
Issue Date:
August 2, 2006
First Distribution Date:
September 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Special Servicer:
LNR Partners, Inc.
Certificate No.: A-J-[1] CUSIP No.: [________]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, NATIONAL ASSOCIATION, LNR
PARTNERS, INC., XXXXX FARGO BANK, N.A. OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF OF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:
--------------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-J Certificates referred to in the within mentioned
Agreement.
Dated: August 2, 2006
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:
--------------------------------------
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
______________________________________________________.
Dated:
-------------------------------------------
Signature by or on behalf of Assignor
-------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ______________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and
notices should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-9
Form of Class B Certificate
CLASS B COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2006-3
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
[Variable] Certificate as of the Issue Date:
$[41,751,000]
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class B Certificates as of the Issue
August 1, 2006 Date:
$[41,751,000]
Cut-off Date: Initial Pool Balance: $[1,964,746,808]
August 1, 2006
Issue Date:
August 2, 2006
First Distribution Date:
September 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Special Servicer:
LNR Partners, Inc.
Certificate No.: B-[1] CUSIP No.: [________]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, NATIONAL ASSOCIATION, LNR
PARTNERS, INC., XXXXX FARGO BANK, N.A. OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF OF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:
--------------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class B Certificates referred to in the within mentioned
Agreement.
Dated: August 2, 2006
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:
--------------------------------------
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
______________________________________________________.
Dated:
-------------------------------------------
Signature by or on behalf of Assignor
-------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ______________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and
notices should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-10
Form of Class C Certificate
CLASS C COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE, SERIES 2006-3
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
[Variable] Certificate as of the Issue Date:
$[19,647,000]
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class C Certificates as of the Issue
August 1, 2006 Date:
$[19,647,000]
Cut-off Date: Initial Pool Balance: $[1,964,746,808]
August 1, 2006
Issue Date:
August 2, 2006
First Distribution Date:
September 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Special Servicer:
LNR Partners, Inc.
Certificate No.: C-[1] CUSIP No.: [________]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, NATIONAL ASSOCIATION, LNR
PARTNERS, INC., XXXXX FARGO BANK, N.A. OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF OF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:
--------------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class C Certificates referred to in the within mentioned
Agreement.
Dated: August 2, 2006
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:
--------------------------------------
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
______________________________________________________.
Dated:
-------------------------------------------
Signature by or on behalf of Assignor
-------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ______________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and
notices should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-11
Form of Class D Certificate
CLASS D COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2006-3
[RULE 144A](1) [REG S](2) CERTIFICATE
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
[Variable] Certificate as of the Issue Date:
$[31,927,000]
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class D Certificates as of the Issue
August 1, 2006 Date:
$[31,927,000]
Cut-off Date: Initial Pool Balance: $[1,964,746,808]
August 1, 2006
Issue Date:
August 2, 2006
First Distribution Date:
September 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Special Servicer:
LNR Partners, Inc.
Certificate No.: D-[1] CUSIP No.: [__________](1)
[__________](2)
----------
(1) For Rule 144A Book-Entry Certificates only.
(2) For Reg S Book-Entry Certificates only.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, NATIONAL ASSOCIATION, LNR
PARTNERS, INC., XXXXX FARGO BANK, N.A. OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF OF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:
--------------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class D Certificates referred to in the within mentioned
Agreement.
Dated: August 2, 2006
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:
--------------------------------------
Authorized Signatory
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred for, or
issued in exchange for or upon Remaining Principal
transfer of, an interest in this Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
______________________________________________________.
Dated:
-------------------------------------------
Signature by or on behalf of Assignor
-------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ______________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and
notices should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-12
Form of Class E Certificate
CLASS E COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2006-3
[RULE 144A](1) [REG S](2) CERTIFICATE
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
[Variable] Certificate as of the Issue Date:
$[17,192,000]
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class E Certificates as of the Issue
August 1, 2006 Date:
$[17,192,000]
Cut-off Date: Initial Pool Balance: $[1,964,746,808]
August 1, 2006
Issue Date:
August 2, 2006
First Distribution Date:
September 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Special Servicer:
LNR Partners, Inc.
Certificate No.: E-[1] CUSIP No.: [__________](1)
[__________](2)
----------
(1) For Rule 144A Book-Entry Certificates only.
(2) For Reg S Book-Entry Certificates only.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, NATIONAL ASSOCIATION, LNR
PARTNERS, INC., XXXXX FARGO BANK, N.A. OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF OF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:
--------------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class E Certificates referred to in the within mentioned
Agreement.
Dated: August 2, 2006
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:
--------------------------------------
Authorized Signatory
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred for, or
issued in exchange for or upon Remaining Principal
transfer of, an interest in this Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
______________________________________________________.
Dated:
-------------------------------------------
Signature by or on behalf of Assignor
-------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ______________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and
notices should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-13
Form of Class F Certificate
CLASS F COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2006-3
[RULE 144A](1) [REG S](2) CERTIFICATE
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
[Variable] Certificate as of the Issue Date:
$[22,103,000]
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class F Certificates as of the Issue
August 1, 2006 Date:
$[22,103,000]
Cut-off Date: Initial Pool Balance: $[1,964,746,808]
August 1, 2006
Issue Date:
August 2, 2006
First Distribution Date:
September 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Special Servicer:
LNR Partners, Inc.
Certificate No.: F-[1] CUSIP No.: [__________](1)
[__________](2)
----------
(1) For Rule 144A Book-Entry Certificates only.
(2) For Reg S Book-Entry Certificates only.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, NATIONAL ASSOCIATION, LNR
PARTNERS, INC., XXXXX FARGO BANK, N.A. OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF OF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:
--------------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class F Certificates referred to in the within mentioned
Agreement.
Dated: August 2, 2006
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:
--------------------------------------
Authorized Signatory
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred for, or
issued in exchange for or upon Remaining Principal
transfer of, an interest in this Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
______________________________________________________.
Dated:
-------------------------------------------
Signature by or on behalf of Assignor
-------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ______________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and
notices should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-14
Form of Class G Certificate
CLASS G COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2006-3
[RULE 144A](1) [REG S](2) CERTIFICATE
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
[Variable] Certificate as of the Issue Date:
$[17,192,000]
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class G Certificates as of the Issue
August 1, 2006 Date:
$[17,192,000]
Cut-off Date: Initial Pool Balance: $[1,964,746,808]
August 1, 2006
Issue Date:
August 2, 2006
First Distribution Date:
September 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Special Servicer:
LNR Partners, Inc.
Certificate No.: G-[1] CUSIP No.: [__________](1)
[__________](2)
----------
(1) For Rule 144A Book-Entry Certificates only.
(2) For Reg S Book-Entry Certificates only.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, NATIONAL ASSOCIATION, LNR
PARTNERS, INC., XXXXX FARGO BANK, N.A. OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF OF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:
--------------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class G Certificates referred to in the within mentioned
Agreement.
Dated: August 2, 2006
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:
--------------------------------------
Authorized Signatory
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred for, or
issued in exchange for or upon Remaining Principal
transfer of, an interest in this Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
______________________________________________________.
Dated:
-------------------------------------------
Signature by or on behalf of Assignor
-------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ______________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and
notices should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-15
Form of Class H Certificate
CLASS H COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2006-3
[RULE 144A](1) [REG S](2) CERTIFICATE
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
[Variable] Certificate as of the Issue Date:
$[22,103,000]
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class H Certificates as of the Issue
August 1, 2006 Date:
$[22,103,000]
Cut-off Date: Initial Pool Balance: $[1,964,746,808]
August 1, 2006
Issue Date:
August 2, 2006
First Distribution Date:
September 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Special Servicer:
LNR Partners, Inc.
Certificate No.: H-[1] CUSIP No.: [__________](1)
[__________](2)
----------
(1) For Rule 144A Book-Entry Certificates only.
(2) For Reg S Book-Entry Certificates only.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, NATIONAL ASSOCIATION, LNR
PARTNERS, INC., XXXXX FARGO BANK, N.A. OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF OF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:
--------------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class H Certificates referred to in the within mentioned
Agreement.
Dated: August 2, 2006
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:
--------------------------------------
Authorized Signatory
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred for, or
issued in exchange for or upon Remaining Principal
transfer of, an interest in this Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
--------------------------------------------------------------------------------
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
______________________________________________________.
Dated:
-------------------------------------------
Signature by or on behalf of Assignor
-------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ______________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and
notices should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-16
Form of Class J Certificate
CLASS J COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2006-3
[RULE 144A](1) [REG S](2) CERTIFICATE
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
[Variable] Certificate as of the Issue Date:
$[12,280,000]
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class J Certificates as of the Issue
August 1, 2006 Date:
$[12,280,000]
Cut-off Date: Initial Pool Balance: $[1,964,746,808]
August 1, 2006
Issue Date:
August 2, 2006
First Distribution Date:
September 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Special Servicer:
LNR Partners, Inc.
Certificate No.: J-[1] CUSIP No.: [__________](1)
[__________](2)
----------
(1) For Rule 144A Book-Entry Certificates only.
(2) For Reg S Book-Entry Certificates only.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, NATIONAL ASSOCIATION, LNR
PARTNERS, INC., XXXXX FARGO BANK, N.A. OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT
TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"),
OR A GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY
FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II)
A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN
ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN
THE ENTITY BY SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION
ss. 2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUCH
CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE
NAME OF A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL
IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE
DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY
SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR RESULT IN A
NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF
THE CODE OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE
DEPOSITOR TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES
UNDER ERISA, SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO
THOSE SET FORTH IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A
CERTIFICATE THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT
IT IS NOT A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF OF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:
--------------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class J Certificates referred to in the within mentioned
Agreement.
Dated: August 2, 2006
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:
--------------------------------------
Authorized Signatory
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred for, or
issued in exchange for or upon Remaining Principal
transfer of, an interest in this Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
______________________________________________________.
Dated:
-------------------------------------------
Signature by or on behalf of Assignor
-------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ______________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and
notices should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-17
Form of Class K Certificate
CLASS K COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2006-3
[RULE 144A](1) [REG S](2) CERTIFICATE
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
[Variable] Certificate as of the Issue Date:
$[7,368,000]
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class K Certificates as of the Issue
August 1, 2006 Date:
$[7,368,000]
Cut-off Date: Initial Pool Balance: $[1,964,746,808]
August 1, 2006
Issue Date:
August 2, 2006
First Distribution Date:
September 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Special Servicer:
LNR Partners, Inc.
Certificate No.: K-[1] CUSIP No.: [__________](1)
[__________](2)
----------
(1) For Rule 144A Book-Entry Certificates only.
(2) For Reg S Book-Entry Certificates only.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, NATIONAL ASSOCIATION, LNR
PARTNERS, INC., XXXXX FARGO BANK, N.A. OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT
TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"),
OR A GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY
FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II)
A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN
ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN
THE ENTITY BY SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION
ss. 2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUCH
CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE
NAME OF A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL
IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE
DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY
SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR RESULT IN A
NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF
THE CODE OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE
DEPOSITOR TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES
UNDER ERISA, SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO
THOSE SET FORTH IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A
CERTIFICATE THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT
IT IS NOT A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF OF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:
--------------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class K Certificates referred to in the within mentioned
Agreement.
Dated: August 2, 2006
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:
--------------------------------------
Authorized Signatory
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred for, or
issued in exchange for or upon Remaining Principal
transfer of, an interest in this Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
______________________________________________________.
Dated:
-------------------------------------------
Signature by or on behalf of Assignor
-------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ______________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and
notices should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-18
Form of Class L Certificate
CLASS L COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2006-3
[RULE 144A](1) [REG S](2) CERTIFICATE
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
[Variable] Certificate as of the Issue Date:
$[7,367,000]
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class L Certificates as of the Issue
August 1, 2006 Date:
$[7,367,000]
Cut-off Date: Initial Pool Balance: $[1,964,746,808]
August 1, 2006
Issue Date:
August 2, 2006
First Distribution Date:
September 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Special Servicer:
LNR Partners, Inc.
Certificate No.: L-[1] CUSIP No.: [__________](1)
[__________](2)
----------
(1) For Rule 144A Book-Entry Certificates only.
(2) For Reg S Book-Entry Certificates only.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, NATIONAL ASSOCIATION, LNR
PARTNERS, INC., XXXXX FARGO BANK, N.A. OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT
TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"),
OR A GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY
FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II)
A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN
ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN
THE ENTITY BY SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION
ss. 2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUCH
CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE
NAME OF A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL
IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE
DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY
SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR RESULT IN A
NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF
THE CODE OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE
DEPOSITOR TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES
UNDER ERISA, SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO
THOSE SET FORTH IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A
CERTIFICATE THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT
IT IS NOT A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:
--------------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class L Certificates referred to in the within mentioned
Agreement.
Dated: August 2, 2006
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:
--------------------------------------
Authorized Signatory
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred for, or
issued in exchange for or upon Remaining Principal
transfer of, an interest in this Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
--------------------------------------------------------------------------------
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--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
______________________________________________________.
Dated:
-------------------------------------------
Signature by or on behalf of Assignor
-------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ______________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and
notices should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-19
Form of Class M Certificate
CLASS M COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2006-3
[RULE 144A](1) [REG S](2) CERTIFICATE
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
[Variable] Certificate as of the Issue Date:
$[2,456,000]
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class M Certificates as of the Issue
August 1, 2006 Date:
$[2,456,000]
Cut-off Date: Initial Pool Balance: $[1,964,746,808]
August 1, 2006
Issue Date:
August 2, 2006
First Distribution Date:
September 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Special Servicer:
LNR Partners, Inc.
Certificate No.: M-[1] CUSIP No.: [__________](1)
[__________](2)
----------
(1) For Rule 144A Book-Entry Certificates only.
(2) For Reg S Book-Entry Certificates only.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, NATIONAL ASSOCIATION, LNR
PARTNERS, INC., XXXXX FARGO BANK, N.A. OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT
TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"),
OR A GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY
FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II)
A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN
ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN
THE ENTITY BY SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION
ss. 2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUCH
CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE
NAME OF A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL
IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE
DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY
SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR RESULT IN A
NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF
THE CODE OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE
DEPOSITOR TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES
UNDER ERISA, SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO
THOSE SET FORTH IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A
CERTIFICATE THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT
IT IS NOT A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:
--------------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class M Certificates referred to in the within mentioned
Agreement.
Dated: August 2, 2006
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:
--------------------------------------
Authorized Signatory
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred for, or
issued in exchange for or upon Remaining Principal
transfer of, an interest in this Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
______________________________________________________.
Dated:
-------------------------------------------
Signature by or on behalf of Assignor
-------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ______________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and
notices should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-20
Form of Class N Certificate
CLASS N COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2006-3
[RULE 144A](1) [REG S](2) CERTIFICATE
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
[Variable] Certificate as of the Issue Date:
$[7,368,000]
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class N Certificates as of the Issue
August 1, 2006 Date:
$[7,368,000]
Cut-off Date: Initial Pool Balance: $[1,964,746,808]
August 1, 2006
Issue Date:
August 2, 2006
First Distribution Date:
September 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Special Servicer:
LNR Partners, Inc.
Certificate No.: N-[1] CUSIP No.: [__________](1)
[__________](2)
----------
(1) For Rule 144A Book-Entry Certificates only.
(2) For Reg S Book-Entry Certificates only.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, NATIONAL ASSOCIATION, LNR
PARTNERS, INC., XXXXX FARGO BANK, N.A. OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT
TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"),
OR A GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY
FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II)
A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN
ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN
THE ENTITY BY SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION
ss. 2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUCH
CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE
NAME OF A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL
IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE
DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY
SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR RESULT IN A
NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF
THE CODE OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE
DEPOSITOR TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES
UNDER ERISA, SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO
THOSE SET FORTH IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A
CERTIFICATE THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT
IT IS NOT A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer, and the Trustee, the REMIC Administrator identified above. To the
extent not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, and the Trustee, the
REMIC Administrator, the Certificate Registrar and any agents of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:
--------------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class N Certificates referred to in the within mentioned
Agreement.
Dated: August 2, 2006
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:
--------------------------------------
Authorized Signatory
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred for, or
issued in exchange for or upon Remaining Principal
transfer of, an interest in this Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
______________________________________________________.
Dated:
-------------------------------------------
Signature by or on behalf of Assignor
-------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ______________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and
notices should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-21
Form of Class O Certificate
CLASS O COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2006-3
[RULE 144A](1) [REG S](2) CERTIFICATE
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
[Variable] Certificate as of the Issue Date:
$[4,912,000]
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class O Certificates as of the Issue
August 1, 2006 Date:
$[4,912,000]
Cut-off Date: Initial Pool Balance: $[1,964,746,808]
August 1, 2006
Issue Date:
August 2, 2006
First Distribution Date:
September 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Special Servicer:
LNR Partners, Inc.
Certificate No.: O-[1] CUSIP No.: [__________](1)
[__________](2)
----------
(1) For Rule 144A Book-Entry Certificates only.
(2) For Reg S Book-Entry Certificates only.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, NATIONAL ASSOCIATION, LNR
PARTNERS, INC., XXXXX FARGO BANK, N.A. OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT
TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"),
OR A GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY
FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II)
A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN
ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN
THE ENTITY BY SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION
ss. 2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUCH
CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE
NAME OF A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL
IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE
DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY
SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR RESULT IN A
NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF
THE CODE OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE
DEPOSITOR TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES
UNDER ERISA, SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO
THOSE SET FORTH IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A
CERTIFICATE THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT
IT IS NOT A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:
--------------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class O Certificates referred to in the within mentioned
Agreement.
Dated: August 2, 2006
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:
--------------------------------------
Authorized Signatory
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred for, or
issued in exchange for or upon Remaining Principal
transfer of, an interest in this Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
--------------------------------------------------------------------------------
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--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
______________________________________________________.
Dated:
-------------------------------------------
Signature by or on behalf of Assignor
-------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ______________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and
notices should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-22
Form of Class P Certificate
CLASS P COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2006-3
[RULE 144A](1) [REG S](2) CERTIFICATE
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
[Variable] Certificate as of the Issue Date:
$[27,015,808]
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class P Certificates as of the Issue
August 1, 2006 Date:
$[27,015,808]
Cut-off Date: Initial Pool Balance: $[1,964,746,808]
August 1, 2006
Issue Date:
August 2, 2006
First Distribution Date:
September 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Special Servicer:
LNR Partners, Inc.
Certificate No.: P-[1] CUSIP No.: [__________](1)
[__________](2)
----------
(1) For Rule 144A Book-Entry Certificates only.
(2) For Reg S Book-Entry Certificates only.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, NATIONAL ASSOCIATION, LNR
PARTNERS, INC., XXXXX FARGO BANK, N.A. OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT
TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"),
OR A GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY
FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II)
A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN
ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN
THE ENTITY BY SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION
ss. 2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUCH
CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE
NAME OF A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL
IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE
DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY
SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR RESULT IN A
NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF
THE CODE OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE
DEPOSITOR TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES
UNDER ERISA, SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO
THOSE SET FORTH IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A
CERTIFICATE THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT
IT IS NOT A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:
--------------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class P Certificates referred to in the within mentioned
Agreement.
Dated: August 2, 2006
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:
--------------------------------------
Authorized Signatory
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred for, or
issued in exchange for or upon Remaining Principal
transfer of, an interest in this Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
______________________________________________________.
Dated:
-------------------------------------------
Signature by or on behalf of Assignor
-------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ______________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and
notices should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-23
Form of Class R-I Certificate
CLASS R-I COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2006-3
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Date of Pooling and Servicing Percentage Interest evidenced by this
Agreement: Certificate in the related Class:
August 1, 2006 100%
Cut-off Date: Initial Pool Balance: $[1,964,746,808]
August 1, 2006
Issue Date:
August 2, 2006
First Distribution Date:
September 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Special Servicer:
LNR Partners, Inc.
Certificate No.: R-I-[1]
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, NATIONAL ASSOCIATION, LNR
PARTNERS, INC., XXXXX FARGO BANK, N.A. OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS, IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (a)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY PERSON WHICH IS
AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY GOVERNMENTAL
PLAN, AS DEFINED IN SECTION 3(32) OF ERISA, SUBJECT TO ANY FEDERAL, STATE OR
LOCAL LAW WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN"), OR ANY PERSON ACTING ON BEHALF OF OR
INVESTING THE ASSETS OF A PLAN.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE EVIDENCES THE "RESIDUAL
INTEREST" IN TWO "REAL ESTATE MORTGAGE INVESTMENT CONDUITS" (EACH, A "REMIC") AS
THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
CONSEQUENTLY, THE TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL
TAX RELATED TRANSFER RESTRICTIONS AS SET FORTH IN SECTION 5.02 OF THE AGREEMENT.
EACH TRANSFEREE OF THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE
ACCEPTED THIS CERTIFICATE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY IF
ANY PERSON BECOMES THE REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF
SUCH TRANSFER RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL
FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A
CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER OR UNDER THE AGREEMENT REFERRED TO
HEREIN, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE.
This certifies that Bank of America, National Association is the registered
owner of the Percentage Interest evidenced by this Certificate (as specified
above) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing upon the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of the Person entitled thereto, as such name and address
appear in the Certificate Register. Notwithstanding the above, the final
distribution in respect of this Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the offices of the Certificate Registrar
appointed as provided in the Agreement or such other location as may be
specified in such notice.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, Distribution Account and, if established, the REO Account
may be made from time to time for purposes other than, and, in certain cases,
prior to, distributions to Certificateholders, such purposes including the
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
Each Person who has or who acquires any Ownership Interest in this
Certificate shall be deemed by the acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the provisions of Section 5.02(d) of the
Agreement and, if any purported Transferee shall become a Holder of this
Certificate in violation of the provisions of such Section 5.02(d), to have
irrevocably authorized the Trustee under clause (ii) of such Section 5.02(d) to
deliver payments to a Person other than such Person and to have irrevocably
authorized the Trustee under clause (ii) of such Section 5.02(d) to negotiate
the terms of any mandatory disposition and to execute all instruments of
transfer and to do all other things necessary in connection with any such
disposition. Each Person holding or acquiring any Ownership Interest in this
Certificate must be a Permitted Transferee and shall promptly notify the Master
Servicer and the Trustee and REMIC Administrator of any change or impending
change in its status as a Permitted Transferee. In connection with any proposed
transfer of any Ownership Interest in this Certificate, the Certificate
Registrar shall require delivery to it, and shall not register the transfer of
this Certificate until its receipt of, an affidavit and agreement substantially
in the form attached as Exhibit C-1 to the Agreement (a "Transfer Affidavit and
Agreement") from the proposed Transferee, in form and substance satisfactory to
the Certificate Registrar, representing and warranting, among other things, that
such Transferee is a Permitted Transferee, that it is not acquiring its
Ownership Interest in this Certificate as a nominee, trustee or agent for any
Person that is not a Permitted Transferee, that for so long as it retains its
Ownership Interest in this Certificate, it will endeavor to remain a Permitted
Transferee, and that it has reviewed the provisions of Section 5.02(d) of the
Agreement and agrees to be bound by them. Notwithstanding the delivery of a
Transfer Affidavit and Agreement by a proposed Transferee, if the Certificate
Registrar has actual knowledge that the proposed Transferee is not a Permitted
Transferee, the Certificate Registrar shall not register the Transfer of an
Ownership Interest in this Certificate to such proposed Transferee.
Each Person holding or acquiring any Ownership Interest in this Certificate
shall agree (x) to require a Transfer Affidavit and Agreement from any other
Person to whom such Person attempts to transfer its Ownership Interest herein
and (y) not to transfer its Ownership Interest herein unless it provides to the
Certificate Registrar a certificate substantially in the form attached as
Exhibit C-2 to the Agreement stating that, among other things, it has no actual
knowledge that such other Person is not a Permitted Transferee.
A "Permitted Transferee" is any Transferee other than any of a Plan or a
Person acting on behalf of or using the assets of a Plan, a Disqualified
Organization, a Disqualified Non-U.S. Person, an entity treated as a U.S.
partnership for federal income tax purposes if any of its direct or indirect
partners (other than through a U.S. corporation) is a Disqualified Non-U.S.
Person or a U.S. Person with respect to whom income on a Residual Certificate is
attributable to a foreign permanent establishment or fixed base, within the
meaning of an applicable income tax treaty, of such Person or any other U.S.
Person or any nominee, agent or middleman of any of the above.
"Disqualified Non-U.S. Persons": is any Non-U.S. Person or agent thereof
other than (i) a Non-U.S. Person that holds this 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 this Certificate to it is in
accordance with the requirements of the Code and the regulations promulgated
thereunder and that such transfer of this Certificate will not be disregarded
for federal income tax purposes.
"Disqualified Organization": is any of: (i) the United States or a possession
thereof, any State or any political subdivision thereof, or any agency or
instrumentality of any of the foregoing (other than an instrumentality that is a
corporation if all of its activities are subject to tax and, except for Xxxxxxx
Mac, a majority of its board of directors is not selected by any such
governmental unit), (ii) a foreign government, international organization, or
any agency or instrumentality of either of the foregoing, (iii) any organization
(except certain farmers' cooperatives described in Section 521 of the Code) that
is exempt from the tax imposed by Chapter 1 of the Code (unless such
organization is subject to the tax imposed by Section 511 of the Code on
unrelated business taxable income), (iv) rural electric and telephone
cooperatives described in Section 1381 of the Code or (v) any other Person so
designated by the REMIC Administrator based upon an Opinion of Counsel (provided
to the Trustee by such Person at its expense) that the holding of an Ownership
Interest in a Residual Certificate by such Person may cause the Trust or any
Person having an Ownership Interest in any Class of Certificates, other than
such Person, to incur a liability for any federal tax imposed under the Code
that would not otherwise be imposed but for the Transfer of an Ownership
Interest in a Residual Certificate to such Person. The terms "United States",
"State" and "international organization" shall have the meanings set forth in
Section 7701 of the Code or successor provisions.
"Non-U.S. Person" is any person other than a U.S. Person. "U.S. Person" is a
citizen or resident of the United States, a corporation or partnership (except
to the extent provided in the applicable Treasury regulations) created or
organized in, or under the laws of, the United States any State thereof or the
District of Columbia, including an entity treated as a corporation or
partnership for federal income tax purposes, or an estate whose income is
subject to United States federal income tax regardless of its source, or a trust
if a court within the United States is able to exercise primary supervision over
the administration of the trust and one or more such U.S. Persons have the
authority to control all substantial decisions of the trust (or, to the extent
provided in applicable Treasury regulations, certain trusts in existence on
August 20, 1996 that are eligible to elect to be treated as U.S. Persons).
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:
--------------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-I Certificates referred to in the within mentioned
Agreement.
Dated: August 2, 2006
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:
--------------------------------------
Authorized Signatory
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred for, or
issued in exchange for or upon Remaining Principal
transfer of, an interest in this Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
______________________________________________________.
Dated:
-------------------------------------------
Signature by or on behalf of Assignor
-------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ______________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and
notices should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-24
Form of Class R-II Certificate
CLASS R-II COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2006-3
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Date of Pooling and Servicing Percentage Interest evidenced by this
Agreement: Certificate in the related Class:
August 1, 2006 100%
Cut-off Date: Initial Pool Balance: $[1,964,746,808]
August 1, 2006
Issue Date:
August 2, 2006
First Distribution Date:
September 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Special Servicer:
LNR Partners, Inc.
Certificate No.: R-II-[1]
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, NATIONAL ASSOCIATION, LNR
PARTNERS, INC., XXXXX FARGO BANK, N.A. OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS, IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (a)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY PERSON WHICH IS
AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY GOVERNMENTAL
PLAN, AS DEFINED IN SECTION 3(32) OF ERISA, SUBJECT TO ANY FEDERAL, STATE OR
LOCAL LAW WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN"), OR ANY PERSON ACTING ON BEHALF OF OR
INVESTING THE ASSETS OF A PLAN.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE EVIDENCES THE "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
CONSEQUENTLY, THE TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL
TAX RELATED TRANSFER RESTRICTIONS AS SET FORTH IN SECTION 5.02 OF THE AGREEMENT.
EACH TRANSFEREE OF THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE
ACCEPTED THIS CERTIFICATE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY. IF
ANY PERSON BECOMES THE REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF
SUCH TRANSFER RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL
FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A
CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER OR UNDER THE AGREEMENT REFERRED TO
HEREIN, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE.
This certifies that Bank of America, National Association is the registered
owner of the Percentage Interest evidenced by this Certificate (as specified
above) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing upon the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of the Person entitled thereto, as such name and address
appear in the Certificate Register. Notwithstanding the above, the final
distribution in respect of this Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the offices of the Certificate Registrar
appointed as provided in the Agreement or such other location as may be
specified in such notice.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, Distribution Account and, if established, the REO Account
may be made from time to time for purposes other than, and, in certain cases,
prior to, distributions to Certificateholders, such purposes including the
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
Each Person who has or who acquires any Ownership Interest in this
Certificate shall be deemed by the acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the provisions of Section 5.02(d) of the
Agreement and, if any purported Transferee shall become a Holder of this
Certificate in violation of the provisions of such Section 5.02(d), to have
irrevocably authorized the Trustee under clause (ii) of such Section 5.02(d) to
deliver payments to a Person other than such Person and to have irrevocably
authorized the Trustee under clause (ii) of such Section 5.02(d) to negotiate
the terms of any mandatory disposition and to execute all instruments of
transfer and to do all other things necessary in connection with any such
disposition. Each Person holding or acquiring any Ownership Interest in this
Certificate must be a Permitted Transferee and shall promptly notify the Master
Servicer and the Trustee and REMIC Administrator of any change or impending
change in its status as a Permitted Transferee. In connection with any proposed
transfer of any Ownership Interest in this Certificate, the Certificate
Registrar shall require delivery to it, and shall not register the transfer of
this Certificate until its receipt of, an affidavit and agreement substantially
in the form attached as Exhibit C-1 to the Agreement (a "Transfer Affidavit and
Agreement") from the proposed Transferee, in form and substance satisfactory to
the Certificate Registrar, representing and warranting, among other things, that
such Transferee is a Permitted Transferee, that it is not acquiring its
Ownership Interest in this Certificate as a nominee, trustee or agent for any
Person that is not a Permitted Transferee, that for so long as it retains its
Ownership Interest in this Certificate, it will endeavor to remain a Permitted
Transferee, and that it has reviewed the provisions of Section 5.02(d) of the
Agreement and agrees to be bound by them. Notwithstanding the delivery of a
Transfer Affidavit and Agreement by a proposed Transferee, if the Certificate
Registrar has actual knowledge that the proposed Transferee is not a Permitted
Transferee, the Certificate Registrar shall not register the Transfer of an
Ownership Interest in this Certificate to such proposed Transferee.
Each Person holding or acquiring any Ownership Interest in this Certificate
shall agree (x) to require a Transfer Affidavit and Agreement from any other
Person to whom such Person attempts to transfer its Ownership Interest herein
and (y) not to transfer its Ownership Interest herein unless it provides to the
Certificate Registrar a certificate substantially in the form attached as
Exhibit C-2 to the Agreement stating that, among other things, it has no actual
knowledge that such other Person is not a Permitted Transferee.
A "Permitted Transferee" is any Transferee other than any of a Plan or a
Person acting on behalf of or using the assets of a Plan, a Disqualified
Organization, a Disqualified Non-U.S. Person, an entity treated as a U.S.
partnership for federal income tax purposes if any of its direct or indirect
partners (other than through a U.S. corporation) is a Disqualified Non-U.S.
Person or a U.S. Person with respect to whom income on a Residual Certificate is
attributable to a foreign permanent establishment or fixed base, within the
meaning of an applicable income tax treaty, of such Person or any other U.S.
Person or any nominee, agent or middleman of any of the above.
"Disqualified Non-U.S. Persons": is any Non-U.S. Person or agent thereof
other than (i) a Non-U.S. Person that holds this 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 this Certificate to it is in
accordance with the requirements of the Code and the regulations promulgated
thereunder and that such transfer of this Certificate will not be disregarded
for federal income tax purposes.
"Disqualified Organization": is any of: (i) the United States or a possession
thereof, any State or any political subdivision thereof, or any agency or
instrumentality of any of the foregoing (other than an instrumentality that is a
corporation if all of its activities are subject to tax and, except for Xxxxxxx
Mac, a majority of its board of directors is not selected by any such
governmental unit), (ii) a foreign government, international organization, or
any agency or instrumentality of either of the foregoing, (iii) any organization
(except certain farmers' cooperatives described in Section 521 of the Code) that
is exempt from the tax imposed by Chapter 1 of the Code (unless such
organization is subject to the tax imposed by Section 511 of the Code on
unrelated business taxable income), (iv) rural electric and telephone
cooperatives described in Section 1381 of the Code or (v) any other Person so
designated by the REMIC Administrator based upon an Opinion of Counsel (provided
to the Trustee by such Person at its expense) that the holding of an Ownership
Interest in a Residual Certificate by such Person may cause the Trust or any
Person having an Ownership Interest in any Class of Certificates, other than
such Person, to incur a liability for any federal tax imposed under the Code
that would not otherwise be imposed but for the Transfer of an Ownership
Interest in a Residual Certificate to such Person. The terms "United States",
"State" and "international organization" shall have the meanings set forth in
Section 7701 of the Code or successor provisions.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:
--------------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-II Certificates referred to in the within
mentioned Agreement.
Dated: August 2, 2006
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:
--------------------------------------
Authorized Signatory
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred for, or
issued in exchange for or upon Remaining Principal
transfer of, an interest in this Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
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--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
______________________________________________________.
Dated:
-------------------------------------------
Signature by or on behalf of Assignor
-------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ______________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and
notices should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-25
Form of Class V Certificate
CLASS V COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2006-3
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Date of Pooling and Servicing Percentage Interest evidenced by this
Agreement: Certificate in the related Class:
August 1, 2006 [100]%
Cut-off Date: Initial Pool Balance: $[1,964,746,808]
August 1, 2006
Issue Date:
August 2, 2006
First Distribution Date:
September 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Special Servicer:
LNR Partners, Inc.
Certificate No.: V-[1]
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, NATIONAL ASSOCIATION, LNR
PARTNERS, INC., XXXXX FARGO BANK, N.A. OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED AN INVESTMENT REPRESENTATION LETTER FROM THE
PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND SUBSTANCE
SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE EFFECT THAT
SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT PLAN
SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION
4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL,
STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO
THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II) A PERSON
ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY
WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE
ENTITY BY SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss.
2510.3-101).
THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND DOES NOT
ENTITLE THE HOLDER HEREOF TO ANY DISTRIBUTIONS OF PRINCIPAL. THE HOLDER HEREOF
WILL BE ENTITLED TO DISTRIBUTIONS OF EXCESS INTEREST RECEIVED ON THE MORTGAGE
POOL AS PROVIDED IN THE AGREEMENT.
This certifies that [_____________] is the registered owner of the Percentage
Interest evidenced by this Certificate (as specified above) in that certain
beneficial ownership interest in the Trust Fund evidenced by all the
Certificates of the same Class as this Certificate. The Trust Fund was created
and the Certificates were issued pursuant to a Pooling and Servicing Agreement,
dated as specified above (the "Agreement"), among Banc of America Commercial
Mortgage Inc., as Depositor, and the Master Servicer, the Special Servicer and
the Trustee and REMIC Administrator identified above. To the extent not defined
herein, the capitalized terms used herein have the respective meanings assigned
in the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar appointed as provided in the Agreement or
such other location as may be specified in such notice.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the REMIC Administrator with the consent of the Holders of
Certificates entitled to at least 51% of the Voting Rights allocated to the
affected Classes. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain circumstances, including any amendment necessary to maintain the status
of REMIC I or REMIC II as a REMIC, without the consent of the Holders of any of
the Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:
--------------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class V Certificates referred to in the within mentioned
Agreement.
Dated: August 2, 2006
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:
--------------------------------------
Authorized Signatory
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred for, or
issued in exchange for or upon Remaining Principal
transfer of, an interest in this Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
______________________________________________________.
Dated:
-------------------------------------------
Signature by or on behalf of Assignor
-------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ______________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and
notices should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
EXHIBIT B
FORM OF INVESTMENT REPRESENTATION LETTER
Xxxxx Fargo Bank, X.X.
Xxxxx Fargo Center, Sixth and Marquette
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attn: Corporate (CMBS) Securities - Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 0000-0
Xxxx xx Xxxxxxx Commercial Mortgage Inc.
000 Xxxxx Xxxxx Xxxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Re: Transfer of Banc of America Commercial Mortgage Inc., Commercial
Mortgage Pass-Through Certificates, Series 2006-3
Ladies and Gentlemen:
This letter is delivered pursuant to Section 5.02 of the Pooling and
Servicing Agreement dated as of August 1, 2006 (the "Pooling and Servicing
Agreement"), by and among Banc of America Commercial Mortgage Inc., as
Depositor, Bank of America, National Association, as Master Servicer, LNR
Partners, Inc., as Special Servicer, and Xxxxx Fargo Bank, N.A., as Trustee and
REMIC Administrator on behalf of the holders of Banc of America Commercial
Mortgage Inc., Commercial Mortgage Pass-Through Certificates, Series 2006-3 (the
"Certificates"), in connection with the transfer by _________________ (the
"Seller") to the undersigned (the "Purchaser") of $_______________ aggregate
Certificate Balance of Class ___ Certificates (the "Certificate"). Capitalized
terms used and not otherwise defined herein shall have the respective meanings
ascribed to such terms in the Pooling and Servicing Agreement.
In connection with such transfer, the Purchaser hereby represents
and warrants to you and the addressees hereof as follows:
(a) Check one of the following:*
[ ] The Purchaser is an institutional "accredited investor" (an
entity meeting the requirements of Rule 501(a)(1), (2), (3) or (7) of Regulation
D under the Securities Act of 1933, as amended (the "1933 Act")) and has such
knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks of its investment in the Certificates, and the
Purchaser and any accounts for which it is acting are each able to bear the
economic risk of the Purchaser's or such account's investment. The Purchaser is
acquiring the Certificates purchased by it for its own account or for one or
more accounts (each of which is an "institutional accredited investor") as to
each of which the Purchaser exercises sole investment discretion. The Purchaser
hereby undertakes to reimburse the Trust Fund for any costs incurred by it in
connection with this transfer.
[ ] The Purchaser is a "qualified institutional buyer" within the
meaning of Rule 144A ("Rule 144A") promulgated under the Securities Act of 1933,
as amended (the "1933 Act"). The Purchaser is aware that the transfer is being
made in reliance on Rule 144A, and the Purchaser has had the opportunity to
obtain the information required to be provided pursuant to paragraph (d)(4)(i)
of Rule 144A.
(b) The Purchaser's intention is to acquire the Certificate (a) for
investment for the Purchaser's own account or (b) for resale (i) to "qualified
institutional buyers" in transactions under Rule 144A, and not in any event with
the view to, or for resale in connection with, any distribution thereof, or (ii)
to institutional "accredited investors" meeting the requirements of Rule
501(a)(1), (2), (3) or (7) of Regulation D promulgated under the 1933 Act and
applicable state securities laws, pursuant to any other exemption from the
registration requirements of the 1933 Act and applicable state securities laws,
subject in the case of this clause (ii) to (w) the receipt by the Certificate
Registrar of a letter substantially in the form hereof, (x) the receipt by the
Certificate Registrar of an opinion of counsel acceptable to the Certificate
Registrar that such reoffer, resale, pledge or transfer is in compliance with
the 1933 Act, (y) the receipt by the Certificate Registrar of such other
evidence acceptable to the Certificate Registrar that such reoffer, resale,
pledge or transfer is in compliance with the 1933 Act and other applicable laws
and (z) a written undertaking to reimburse the Trust for any costs incurred by
it in connection with the proposed transfer. The Purchaser understands that the
Certificate (and any subsequent Certificate) has not been registered under the
1933 Act, by reason of a specified exemption from the registration provisions of
the 1933 Act which depends upon, among other things, the bona fide nature of the
Purchaser's investment intent (or intent to resell to only certain investors in
certain exempted transactions) as expressed herein.
(c) The Purchaser has reviewed the Private Placement Memorandum
relating to the Certificates (the "Private Placement Memorandum") and the
agreements and other materials referred to therein and has had the opportunity
to ask questions and receive answers concerning the terms and conditions of the
transactions contemplated by the Private Placement Memorandum.
(d) The Purchaser acknowledges that the Certificate (and any
Certificate issued on transfer or exchange thereof) has not been registered or
qualified under the 1933 Act or the securities laws of any State or any other
jurisdiction, and that the Certificate cannot be resold unless it is registered
or qualified thereunder or unless an exemption from such registration or
qualification is available.
(e) The Purchaser hereby undertakes to be bound by the terms and
conditions of the Pooling and Servicing Agreement in its capacity as an owner of
a Certificate or Certificates, as the case may be (each, a "Certificateholder"),
in all respects as if it were a signatory thereto. This undertaking is made for
the benefit of the Trust, the Certificate Registrar and all Certificateholders
present and future.
----------
* Each Purchaser must include one of the two alternative certifications.
(f) The Purchaser will not sell or otherwise transfer any portion of
the Certificate or Certificates, except in compliance with Section 5.02 of the
Pooling and Servicing Agreement.
(g) Check one of the following:*
[ ] The Purchaser is a U.S. Tax Person (as defined below) and it has
attached hereto an Internal Revenue Service ("IRS") Form W-9 (or successor
form).
[ ] The Purchaser is not a "U.S. Tax Person" and under applicable
law in effect on the date hereof, no taxes will be required to be withheld by
the Certificate Registrar (or its agent) with respect to distributions to be
made on the Certificate. The Purchaser has attached hereto [(i) a duly executed
IRS Form W-8BEN (or successor form), which identifies such Purchaser as the
beneficial owner of the Certificate and states that such Purchaser is not a U.S.
Tax Person, (ii) two duly executed copies of IRS Form W-8IMY (with all
appropriate attachments) or (iii)]** two duly executed copies of IRS Form W-8ECI
(or successor form), which identify such Purchaser as the beneficial owner of
the Certificate and state that interest and original interest discount on the
Certificate and Permitted Investments is, or is expected to be, effectively
connected with a United States trade or business. The Purchaser agrees to
provide to the Certificate Registrar updated [IRS Form W-8BEN, IRS Form W-8IMY
or]** IRS Forms W-8ECI, [as the case may be,]** any applicable successor IRS
forms, or such other certifications as the Certificate Registrar may reasonably
request, on or before the date that any such IRS form or certification expires
or becomes obsolete, or promptly after the occurrence of any event requiring a
change in the most recent IRS form of certification furnished by it to the
Certificate Registrar.
----------
* Each Purchaser must include one of the following two certifications.
** Omit for Class R-I and Class R-II.
For this purpose, "U.S. Tax Person" means a citizen or resident of
the United States for United States federal income tax purposes, a corporation
or partnership (except to the extent provided in applicable Treasury
regulations) created or organized in or under the laws of the United States, any
State thereof or the District of Columbia, including any entity treated as a
corporation or partnership for federal income tax purposes, an estate the income
of which is subject to United States federal income taxation regardless of its
source, or a trust if a court within the United States is able to exercise
primary supervision over the administration of such trust, and one or more
United States fiduciaries have the authority to control all substantial
decisions of such trust (or, to the extent provided in applicable Treasury
regulations, certain trusts in existence on August 20, 1996 which are eligible
to elect to be treated as U.S. Tax Persons).
(h) Please make all payments due on the Certificates:***
[ ] (A) by wire transfer to the following account at a bank or
entity in New York, New York, having appropriate facilities therefor:
Bank: _________________________________________
ABA#: _________________________________________
Account #: ___________________________________
Attention: ___________________________________
[ ] (B) by mailing a check or draft to the following address:
_______________________________________________
_______________________________________________
_______________________________________________
Very truly yours,
--------------------------------------
[The Purchaser]
By:
--------------------------------------
Name:
Title:
Dated:
----------
*** Only to be filled out by Purchasers of Definitive Certificates. Please
select (a) or (b). For holders of Definitive Certificates, wire transfers are
only available if such holder's Definitive Certificates have an aggregate
Certificate Balance or Notional Amount, as applicable, of at least U.S.
$5,000,000.
EXHIBIT C-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
PURSUANT TO SECTION 5.02(d)(i)(B)
STATE OF )
) participation.:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says that:
(a) He/She is the [Title of Officer] of [Name of Prospective
Transferee] (the prospective transferee (the "Transferee") of a Banc of America
Commercial Mortgage Inc. Class R-[I] [II] Commercial Mortgage Pass-Through
Certificate, Series 2006-3, evidencing a ____% Percentage Interest in the Class
to which it belongs (the "Residual Certificate")), a _________________________
duly organized and validly existing under the laws of [the State of ____] [the
United States], on behalf of which he/she makes this affidavit. Capitalized
terms used but not defined herein have the respective meanings assigned thereto
in the Pooling and Servicing Agreement pursuant to which the Residual
Certificate was issued (the "Pooling and Servicing Agreement").
(b) The Transferee (i) is [and, as of [date of transfer], will be] a
Permitted Transferee and will endeavor to remain a Permitted Transferee for so
long as it holds the Residual Certificate, and (ii) is acquiring the Residual
Certificate for its own account or for the account of another prospective
transferee from which it has received an affidavit in substantially the same
form as this affidavit.
(c) The Transferee is aware (i) of the tax that would be imposed on
transfers of the Residual Certificate to Disqualified Organizations under the
Internal Revenue Code of 1986, as amended; (ii) that such tax would be imposed
on the transferor, or, if such transfer is through an agent (which person
includes a broker, nominee or middleman) for a Disqualified Organization, on the
agent; (iii) that the person otherwise liable for the tax shall be relieved of
liability for the tax if the transferee furnishes to such person an affidavit
that the transferee is not a Disqualified Organization and, at the time of
transfer, such person does not have actual knowledge that the affidavit is
false; and (iv) that the Residual Certificate may be a "non-economic residual
interest" within the meaning of Treasury Regulations Section 1.860E-1(c) and
that the transferor of a "non-economic residual interest" will remain liable for
any taxes due with respect to the income on such residual interest, unless no
significant purpose of the transfer is to enable the transferor to impede the
assessment or collection of tax.
(d) The Transferee is aware of the tax imposed on a "pass-through
entity" holding the Residual Certificate if at any time during the taxable year
of the pass-through entity a "disqualified organization" is the record holder of
an interest in such entity. (For this purpose, a "pass-through entity" includes
a regulated investment company, a real estate investment trust or common trust
fund, a partnership, trust or estate, and certain cooperatives.)
(e) The Transferee is aware that the Certificate Registrar will not
register any transfer of the Residual Certificate by the Transferee unless the
Transferee's transferee, or such transferee's agent, delivers to the Certificate
Registrar, among other things, an affidavit and agreement in substantially the
same form as this affidavit and agreement. The Transferee expressly agrees that
it will not consummate any such transfer if it knows or believes that any
representation contained in such affidavit and agreement is false.
(f) The Transferee consents to any additional restrictions or
arrangements that shall be deemed necessary upon advice of counsel to constitute
a reasonable arrangement to ensure that the Residual Certificate will only be
owned, directly or indirectly, by a Permitted Transferee.
(g) The Transferee's taxpayer identification number is
______________.
(h) The Transferee has reviewed the provisions of Section 5.02(d) of
the Pooling and Servicing Agreement, a description of which provisions is set
forth in the Residual Certificate (in particular, clause (ii) of Section 5.02(d)
which authorizes the Trustee to deliver payments on the Residual Certificate to
a person other than the Transferee, in the event that the Transferee holds such
Residual Certificate in violation of Section 5.02(d)), and the Transferee
expressly agrees to be bound by and to comply with such provisions.
(i) No purpose of the Transferee relating to its purchase or any
sale of the Residual Certificate is or will be to impede the assessment or
collection of any tax.
(j) The Transferee hereby represents to and for the benefit of the
transferor that the Transferee intends to pay any taxes associated with holding
the Residual Certificate as they become due, fully understanding that it may
incur tax liabilities in excess of any cash flows generated by the Residual
Certificate.
(k) The Transferee will, in connection with any transfer that it
makes of the Residual Certificate, deliver to the Certificate Registrar a
representation letter substantially in the form of Exhibit C-2 to the Pooling
and Servicing Agreement in which it will represent and warrant, among other
things, that it is not transferring the Residual Certificate to impede the
assessment or collection of any tax and that it has at the time of such transfer
conducted a reasonable investigation of the financial condition of the proposed
transferee as contemplated by Treasury Regulations Section 1.860E-1(c)(4)(i) and
has satisfied the requirements of such provision.
(l) The Transferee will not cause income to be attributable to a
foreign permanent establishment or fixed base, within the meaning of an
applicable income tax treaty, of the Transferee or any other United States
person.
(m) Check the applicable box:
[ ] the present value of the anticipated tax liabilities associated
with holding the Residual Certificate does not exceed the sum of:
(i) the present value of any consideration given to the Transferee
to acquire such Residual Certificate;
(ii) the present value of the expected future distributions on such
Residual Certificate; and
(iii) the present value of the anticipated tax savings associated
with holding such Residual Certificate as the related REMIC generates
losses.
For purposes of this calculation, (i) the Transferee is assumed to
pay tax at the highest rate currently specified in Section 11(b) of the Code
(but the tax rate in Section 55(b)(1)(B) of the Code may be used in lieu of the
highest rate specified in Section 11(b) of the Code if the Transferee has been
subject to the alternative minimum tax under Section 55 of the Code in the
preceding two years and will compute its taxable income in the current taxable
year using the alternative minimum tax rate) and (ii) present values are
computed using a discount rate equal to the short-term Federal rate prescribed
by Section 1274(d) of the Code for the month of the transfer and the compounding
period used by the Transferee.
[ ] The transfer of the Residual Certificate complies with U.S.
Treasury Regulations Sections 1.860G-1(c)(5) and (6) and, accordingly,
(i) the Transferee is an "eligible corporation," as defined in U.S.
Treasury Regulations Section 1.860E-1(c)(6)(i), as to which income from
the Residual Certificate will only be taxed in the United States;
(ii) at the time of the transfer, and at the close of the
Transferee's two fiscal years preceding the year of the transfer, the
Transferee had gross assets for financial reporting purposes (excluding
any obligation of a person related to the Transferee within the meaning of
U.S. Treasury Regulations Section 1.860E-1(c)(6)(ii)) in excess of $100
million and net assets in excess of $10 million;
(iii) the Transferee will transfer the Residual Certificate only to
another "eligible corporation," as defined in U.S. Treasury Regulations
Section 1.860E-1(c)(6)(i), in a transaction that satisfies the
requirements of U.S. Treasury Regulations Sections 1.860G-1(c)(4)(i), (ii)
and (iii) and 1.860E-1(c)(5); and
(iv) the Transferee determined the consideration paid to it to
acquire the Residual Certificate based on reasonable market assumptions
(including, but not limited to, borrowing and investment rates, prepayment
and loss assumptions, expense and reinvestment assumptions, tax rates and
other factors specific to the Transferee) that it has determined in good
faith.
[ ] None of the above.
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to the authority of its Board of Directors, by
its [Title of Officer] and its corporate seal to be hereunto attached, attested
by its [Assistant] Secretary, this ___ day of __________, 20__.
[NAME OF TRANSFEREE]
By:
---------------------------------------
[Name of Officer]
[Title of Officer]
[Corporate Seal]
ATTEST:
------------------------------
[Assistant] Secretary
Personally appeared before me the above named [Name of Officer],
known or proved to me to be the same person who executed the foregoing
instrument and to be the [Title of Officer] of the Transferee, and acknowledged
to me that he/she executed the same as his/her free act and deed and the free
act and deed of the Transferee
Subscribed and sworn before me this ___ day of ______________, 20__.
-----------------------------------------
NOTARY PUBLIC
COUNTY OF ___________
STATE OF _____________
My Commission expires the _________
day of _____________, 20__.
EXHIBIT C-2
FORM OF TRANSFEROR CERTIFICATE
PURSUANT TO SECTION 5.02(d)(i)(D)
__________________, 20___
Xxxxx Fargo Bank, X.X.
Xxxxx Fargo Center, Sixth and Marquette
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attn: Corporate (CMBS) Securities - Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2006-3
Re: Banc of America Commercial Mortgage Inc., Commercial Mortgage
Pass-Through Certificates, Series 2006-3, Class R-[I] [II],
evidencing a __% percentage interest in the Class to which it
belongs
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_____________ (the "Transferor") to ____________________ (the "Transferee") of
the captioned Class R-[I] [II] Certificate (the "Residual Certificate"),
pursuant to Section 5.02 of the Pooling and Servicing Agreement (the "Pooling
and Servicing Agreement"), dated as of August 1, 2006, by and among Banc of
America Commercial Mortgage Inc., as Depositor, Bank of America, National
Association, as Master Servicer, LNR Partners, Inc., as Special Servicer, and
Xxxxx Fargo Bank, N.A., as Trustee and REMIC Administrator. All terms used
herein and not otherwise defined shall have the respective meanings set forth in
the Pooling and Servicing Agreement. The Transferor hereby represents and
warrants to you, as Certificate Registrar, that:
(a) No purpose of the Transferor relating to the transfer of the
Residual Certificate by the Transferor to the Transferee is or will be to impede
the assessment or collection of any tax.
(b) The Transferor understands that the Transferee has delivered to
you a Transfer Affidavit and Agreement in the form attached to the Pooling and
Servicing Agreement as Exhibit C-1. The Transferor does not know or believe that
any representation contained therein is false.
(c) The Transferor has at the time of this transfer conducted a
reasonable investigation of the financial condition of the Transferee as
contemplated by Treasury Regulations Section 1.860E-1(c)(4)(i) and, as a result
of that investigation, the Transferor has determined that the Transferee has
historically paid its debts as they became due and has found no significant
evidence to indicate that the Transferee will not continue to pay its debts as
they become due in the future. The Transferor understands that the transfer of
the Residual Certificate may not be respected for United States federal income
tax purposes (and the Transferor may continue to be liable for United States
federal income taxes associated therewith) unless the Transferor has conducted
such an investigation.
Very truly yours,
-----------------------------------------
(Transferor)
By:
--------------------------------------
Name:
Title:
EXHIBIT D
REQUEST FOR RELEASE
____________________, 20___
Xxxxx Fargo Bank, X.X.
Xxxxx Fargo Center, Sixth and Marquette
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attn: Corporate (CMBS) Securities - Banc of America Commercial Mortgage
Inc., Commercial Mortgage Pass-Through Certificates, Series 2006-3
In connection with the administration of the Mortgage Files held by
or on behalf of you as Trustee under that certain Pooling and Servicing
Agreement dated as of August 1, 2006 (the "Pooling and Servicing Agreement"), by
and among Banc of America Commercial Mortgage Inc., as Depositor, Bank of
America, National Association, as Master Servicer, LNR Partners, Inc., as
Special Servicer and Xxxxx Fargo Bank, N.A., as Trustee and REMIC Administrator,
the undersigned hereby requests a release of the Mortgage File (or the portion
thereof specified below) held by or on behalf of you as Trustee with respect to
the following described Mortgage Loan for the reason indicated below.
Property Name:____________________________________
Address:_________________________________________
Prospectus No.:____________________________________
If only particular documents in the Mortgage File are requested, please specify
which:
------------------------------------------------------------------------
Reason for requesting file (or portion thereof):
______ (a) Mortgage Loan paid in full. The undersigned hereby
certifies that all amounts received in connection with the Mortgage Loan that
are required to be credited to the Certificate Account pursuant to the Pooling
and Servicing Agreement, have been or will be so credited.
______ (b) The Mortgage Loan is being foreclosed.
______ (c) Other. (Describe)
The undersigned acknowledges that the above Mortgage File (or
requested portion thereof) will be held by the undersigned in accordance with
the provisions of the Pooling and Servicing Agreement and will be returned to
you or your designee within ten (10) days of our receipt thereof, unless the
Mortgage Loan has been paid in full, in which case the Mortgage File (or such
portion thereof) will be retained by us permanently, or unless the Mortgage Loan
is being foreclosed, in which case the Mortgage File (or such portion thereof)
will be returned when no longer required by us for such purpose.
Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Pooling and Servicing Agreement.
BANK OF AMERICA, NATIONAL ASSOCIATION
By:
--------------------------------------
Name:
Title:
Phone:
LNR PARTNERS, INC.
By:
--------------------------------------
Name:
Title:
Phone:
Please deliver the Mortgage File as follows:
____________________________________________
____________________________________________
____________________________________________
Attention: ________________________________
Phone: ___________________________________
EXHIBIT E
FORM OF ERISA REPRESENTATION LETTER
Xxxxx Fargo Bank, X.X.
Xxxxx Fargo Center, Sixth and Marquette
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attn: Corporate (CMBS) Securities - Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 0000-0
Xxxx xx Xxxxxxx Commercial Mortgage Inc.
000 Xxxxx Xxxxx Xxxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Re: Transfer of Banc of America Commercial Mortgage Inc. Commercial
Mortgage Pass-Through Certificates, Series 2006-3
Ladies and Gentlemen:
The undersigned (the "Purchaser") proposes to purchase $____________
initial Certificate Balance of Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2006-3, Class __ (the
"Certificate") issued pursuant to that Pooling and Servicing Agreement, dated as
of August 1, 2006 (the "Pooling and Servicing Agreement"), by and among Banc of
America Commercial Mortgage Inc., as Depositor, Bank of America, National
Association, as Master Servicer, LNR Partners, Inc., as Special Servicer and
Xxxxx Fargo Bank, N.A., as Trustee and REMIC Administrator. Capitalized terms
used and not otherwise defined herein have the respective meanings ascribed to
such terms in the Pooling and Servicing Agreement.
In connection with such transfer, the undersigned hereby represents
and warrants to you as follows:
(a) The Purchaser either is not (a) an employee benefit plan subject
to the fiduciary responsibility provisions of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA") or a plan subject to Section 4975 of
the Internal Revenue Code of 1986, as amended (the "Code"), or a governmental
plan (as defined in Section 3(32) of ERISA) subject to any federal, state or
local law ("Similar Law") which is, to a material extent, similar to the
foregoing provisions of ERISA or the Code (each a "Plan") or (b) a person acting
on behalf of or using the assets of any such Plan (including an entity whose
underlying assets include Plan assets by reason of investment in the entity by
any such Plan and the application of Department of Labor Regulation ss.
2510.3-101), other than (except with respect to the Class V Certificates and the
Residual Certificates) an insurance company using the assets of its general
account under circumstances whereby the purchase and holding of Offered Private
Certificates by such insurance company would be exempt from the prohibited
transaction provisions of ERISA and the Code under both Sections I and III of
Prohibited Transaction Class Exemption 95-60, or (except with respect to the
Class V Certificates and the Residual Certificates) will deliver the opinion
contemplated by 3 below.
(b) Except for the Class V Certificates and the Residual
Certificates (which may not transferred unless the Purchaser can make the
representation described in 1 above), the Purchaser is purchasing Certificates,
which at the time of purchase are rated "BBB-" or better by at least one of
Fitch Ratings, Standard & Poor's Ratings Services, a division of The XxXxxx-Xxxx
Companies, Inc. or Xxxxx'x Investors Service, Inc., and the Purchaser (a) is
purchasing the Certificates pursuant to Prohibited Transaction Exemption 93-31
and (b) is an "accredited investor" as defined in Rule 501(a)(1) of Regulation D
of the Securities and Exchange Commission under the Securities Act of 1933, as
amended.
(c) Except for the Class V Certificates and the Residual
Certificates (which may not transferred unless the Purchaser can make the
representation described in 1 above), the Purchaser understands that if the
Purchaser is a Person referred to in 1(a) or (b) above and cannot make the
representation in 2 above, such Purchaser is required to provide to the
Certificate Registrar an opinion of counsel in form and substance satisfactory
to the Certificate Registrar and the Depositor to the effect that the
acquisition and holding of such Certificate by such purchaser or transferee will
not constitute or result in a non-exempt "prohibited transaction" within the
meaning of ERISA, Section 4975 of the Code or any Similar Law, and will not
subject the Trustee, the Certificate Registrar, the Master Servicer, the Special
Servicer, the Placement Agent or the Depositor to any obligation or liability
(including obligations or liabilities under ERISA, Section 4975 of the Code or
any such Similar Law) in addition to those set forth in the Pooling and
Servicing Agreement, which Opinion of Counsel will not be at the expense of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Placement
Agent, the Certificate Registrar or the Trust Fund.
IN WITNESS WHEREOF, the Purchaser hereby executes this ERISA
Representation Letter on the ___th day of _____, ____.
Very truly yours,
-----------------------------------------
[The Purchaser]
By:
--------------------------------------
Name:
Title:
EXHIBIT F
FORM OF CUSTODIAL CERTIFICATION
[Date]
Banc of America Commercial Mortgage Inc.,
as Depositor
000 Xxxxx Xxxxx Xxxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxx
Re: Pooling and Servicing Agreement dated as of August 1, 2006 (the
"Agreement") by and among Banc of America Commercial Mortgage Inc.
as Depositor, Bank of America, National Association, as Master
Servicer, LNR Partners, Inc., as Special Servicer and Xxxxx Fargo
Bank, N.A., as Trustee and REMIC Administrator for the
Certificateholders of Commercial Mortgage Pass-Through Certificates,
Series 2006-3
Ladies and Gentlemen:
Pursuant to Section 2.02(b) of the above referenced Agreement, the
Trustee hereby certifies as to each Mortgage Loan listed on the Mortgage Loan
Schedule (other than any Mortgage Loan paid in full), and except as specifically
identified in the exception report annexed hereto, (i) all documents specified
in the definition of "Mortgage File" are in its possession or the possession of
a Custodian on its behalf, or each Mortgage Loan Seller has otherwise satisfied
the delivery requirements in respect of such documents in accordance with
Section 2.01(b) and (ii) all documents received by it or any Custodian in
respect of such Mortgage Loan have been reviewed by it or by a Custodian on its
behalf and appear regular on their face, appear to be executed, and relate to
such Mortgage Loan.
None of the Trustee, the Master Servicer, the Special Servicer or
any Custodian is under any duty or obligation (i) to determine whether any of
the documents specified in clauses (iii), (v), (vi) and (viii) through (xii) of
the definition of "Mortgage File" exist or are required to be delivered by the
Mortgage Loan Seller in respect of any Mortgage Loan, or (ii) to inspect, review
or examine any of the documents, instruments, certificates or other papers
relating to the Mortgage Loans delivered to it to determine that the same are
valid, legal, effective, genuine, binding, enforceable, sufficient or
appropriate for the represented purpose or that they are other than what they
purport to be on their face. Notwithstanding the foregoing, with respect to
Letters of Credit referenced in clause (xii) of the definition of "Mortgage
File" the Trustee shall perform the review set forth in Section
2.02(b)(iii)(A)-(C) of the Agreement. Furthermore, except as expressly provided
in Section 2.02(b) of the Agreement, none of the Trustee, the Master Servicer,
the Special Servicer or any Custodian shall have any responsibility for
determining whether the text of any assignment or endorsement is in proper or
recordable form, whether the requisite recording of any document is in
accordance with the requirements of any applicable jurisdiction, or whether a
blanket assignment is permitted in any applicable jurisdiction.
Any terms used herein and not defined shall have the respective
meaning assigned to them in the Agreement.
Respectfully,
[Name]
[Title]
cc: Xxxx X. Xxxxxxx, Esq., Assistant General Counsel, Bank of America
Corporation
EXHIBIT G
FORM OF TRUSTEE DISTRIBUTION DATE STATEMENT
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2006-3 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 09/11/2006
Xxxxxxxx, XX 00000-0000 Determination Date: Record Date: 08/31/2006
-----------------------------------------------------------------------------------------------------------------------------------
DISTRIBUTION DATE STATEMENT
Table of Contents
-------------------------------------------------------------------------------
STATEMENT SECTIONS PAGE(s)
------------------ -------
Certificate Distribution Detail 2
Certificate Factor Detail 3
Reconciliation Detail 4
Other Required Information 5
Cash Reconciliation Detail 6
Ratings Detail 8
Current Mortgage Loan and Property Stratification Tables 8 - 16
Mortgage Loan Detail 17
NOI Detail 18
Principal Prepayment Detail 19
Historical Detail 20
Delinquency Loan Detail 21
Specially Serviced Loan Detail 22 - 23
Modified Loan Detail 24
Historical Liquidated Loan Detail 25
Historical Bond / Collateral Realized Loss Reconciliation 26
Interest Shortfall Reconciliation Detail 27 - 28
Defeased Loan Detail 29
Supplemental Reporting 30
-------------------------------------------------------------------------------
Depositor Master Servicer Special Servicer
-------------------------------------- ------------------------------------------- --------------------------------------
Banc of America Commercial Mortgage Inc. Bank of America, N.A. LNR Partners, Inc.
000 Xxxx Xxxxx Xxxxxx 0000 Xxxxxxxxxx Xxxxxx
000 Xxxxx Xxxxx Xxxxxx Xxxxx 000 Xxxxx 000
Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000 Xxxxx Xxxxx, XX 00000
Contact: Xxxxxxx Xxxxx Contact: Investor Reporting Manager Contact: Xxxxxx Xxxxxx
Phone (000) 000-0000 Phone Number: (000) 000-0000 Phone Number: (000) 000-0000
-------------------------------------- ------------------------------------------- --------------------------------------
This report has been compiled from information provided to Xxxxx Fargo Bank, N.A. by various third parties, which may include the
Master Servicer, Special Servicer and others. Xxxxx Fargo Bank, N.A. has not independently confirmed the accuracy of information
received from these third parties and assumes no duty to do so. Xxxxx Fargo Bank, N.A. expressly disclaims any responsibility for
the accuracy or completeness of information furnished by third parties.
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 1 of 30
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2006-3 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 09/11/2006
Xxxxxxxx, XX 00000-0000 Determination Date: Record Date: 08/31/2006
-----------------------------------------------------------------------------------------------------------------------------------
Certificate Distribution Detail
-----------------------------------------------------------------------------------------------------------------------------------
Realized Loss/ Current
Pass-Through Original Beginning Principal Interest Prepayment Additional Trust Total Ending Subordination
Class CUSIP Rate Balance Balance Distribution Distribution Premium Fund Expenses Distribution Balance Level(1)
-----------------------------------------------------------------------------------------------------------------------------------
A-1 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-2 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-3 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-4 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-1A 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-M 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-J 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
B 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
C 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
D 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
E 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
F 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
G 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
H 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
J 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
K 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
L 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
M 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
N 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
O 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
P 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
V 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
R-I 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
R-II 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
-----------------------------------------------------------------------------------------------------------------------------------
Totals 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
-----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
Original Beginning Ending
Pass-Through Notional Notional Interest Prepayment Total Notional
Class CUSIP Rate Amount Amount Distribution Premium Distribution Amount
----------------------------------------------------------------------------------------------
XW 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00
----------------------------------------------------------------------------------------------
(1) Calculated by taking (A) the sum of the ending certificate balance of all classes less (B) the sum of (i) the ending
balance of the designated class and (ii) the ending certificate balance of all classes which are not subordinate
to the designated class and deviding the result by (A).
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 2 of 30
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2006-3 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 09/11/2006
Xxxxxxxx, XX 00000-0000 Determination Date: Record Date: 08/31/2006
-----------------------------------------------------------------------------------------------------------------------------------
Certificate Factor Detail
--------------------------------------------------------------------------------------------------------------
Realized Loss /
Beginning Principal Interest Prepayment Additional Trust Ending
Class CUSIP Balance Distribution Distribution Premium Fund Expenses Balance
--------------------------------------------------------------------------------------------------------------
A-1 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-2 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-3 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-4 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-1A 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-M 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-J 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
B 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
C 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
D 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
E 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
F 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
G 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
H 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
J 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
K 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
L 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
M 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
N 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
O 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
P 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
V 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
R-I 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
R-II 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
--------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------
Beginning Ending
Notional Interest Prepayment Notional
Class CUSIP Amount Distribution Premium Amount
---------------------------------------------------------------------------
XW 0.00000000 0.00000000 0.00000000 0.00000000
---------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 3 of 30
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2006-3 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 09/11/2006
Xxxxxxxx, XX 00000-0000 Determination Date: Record Date: 08/31/2006
-----------------------------------------------------------------------------------------------------------------------------------
Reconciliation Detail
Advance Summary Master Servicing Fee Summary
P & I Advances Outstanding 0.00 Current Period Accrued Servicing Fees 0.00
Servicing Advances Outstanding 0.00 Less Servicing Fees on Delinquent Payments 0.00
Less Reductions to Servicing Fees 0.00
Reimbursement for Interest on P & I 0.00
Advances paid from general collections Plus Servicing Fees on Delinquent Payments Received 0.00
Plus Adjustments for Prior Servicing Calculation 0.00
Reimbursement for Interest on Servicing 0.00
Advances paid from general collections Total Servicing Fees Collected 0.00
Certificate Interest Reconciliation
------------------------------------------------------------------------------------------------------------------------------------
Accrued Net Aggregate Distributable Distributable Additional
Accrual Certificate Prepayment Certificate Certificate Interest WAC CAP Trust Fund
Class Days Interest Interest Shortfall Interest Adjustment Shortfall Expenses
------------------------------------------------------------------------------------------------------------------------------------
A-1 0 0.00 0.00 0.00 0.00 0.00 0.00
A-2 0 0.00 0.00 0.00 0.00 0.00 0.00
A-3 0 0.00 0.00 0.00 0.00 0.00 0.00
A-4 0 0.00 0.00 0.00 0.00 0.00 0.00
A-1A 0 0.00 0.00 0.00 0.00 0.00 0.00
A-M 0 0.00 0.00 0.00 0.00 0.00 0.00
A-J 0 0.00 0.00 0.00 0.00 0.00 0.00
XW 0 0.00 0.00 0.00 0.00 0.00 0.00
B 0 0.00 0.00 0.00 0.00 0.00 0.00
C 0 0.00 0.00 0.00 0.00 0.00 0.00
D 0 0.00 0.00 0.00 0.00 0.00 0.00
E 0 0.00 0.00 0.00 0.00 0.00 0.00
F 0 0.00 0.00 0.00 0.00 0.00 0.00
G 0 0.00 0.00 0.00 0.00 0.00 0.00
H 0 0.00 0.00 0.00 0.00 0.00 0.00
J 0 0.00 0.00 0.00 0.00 0.00 0.00
K 0 0.00 0.00 0.00 0.00 0.00 0.00
L 0 0.00 0.00 0.00 0.00 0.00 0.00
M 0 0.00 0.00 0.00 0.00 0.00 0.00
N 0 0.00 0.00 0.00 0.00 0.00 0.00
O 0 0.00 0.00 0.00 0.00 0.00 0.00
P 0 0.00 0.00 0.00 0.00 0.00 0.00
V 0 0.00 0.00 0.00 0.00 0.00 0.00
------------------------------------------------------------------------------------------------------------------------------------
Totals 0.00 0.00 0.00 0.00 0.00 0.00
------------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------
Remaining Unpaid
Interest Distributable
Class Distribution Certificate Interest
--------------------------------------------
A-1 0.00 0.00
A-2 0.00 0.00
A-3 0.00 0.00
A-4 0.00 0.00
A-1A 0.00 0.00
A-M 0.00 0.00
A-J 0.00 0.00
XW 0.00 0.00
B 0.00 0.00
C 0.00 0.00
D 0.00 0.00
E 0.00 0.00
F 0.00 0.00
G 0.00 0.00
H 0.00 0.00
J 0.00 0.00
K 0.00 0.00
L 0.00 0.00
M 0.00 0.00
N 0.00 0.00
O 0.00 0.00
P 0.00 0.00
V 0.00 0.00
--------------------------------------------
Totals 0.00 0.00
--------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 4 of 30
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2006-3 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 09/11/2006
Xxxxxxxx, XX 00000-0000 Determination Date: Record Date: 08/31/2006
-----------------------------------------------------------------------------------------------------------------------------------
Other Required Information
--------------------------------------------------------------------------------
Available Distribution Amount (1)
All Loans 0.00
Loan Group 1 0.00
Loan Group 2 0.00
Principal Distribution Amount
Loan Group 1 0.00
Loan Group 2 0.00
Aggregate Unpaid Principal Balance Outstanding
All Loans 0.00
Loan Group 1 0.00
Loan Group 2 0.00
Aggregate Stated Principal Balance after current Distribution Date
All Loans 0.00
Loan Group 1 0.00
Loan Group 2 0.00
Aggregate Stated Principal Balance before current Distribution Date
All Loans 0.00
Loan Group 1 0.00
Loan Group 2 0.00
(1) The Available Distribution Amount includes any Prepayment Premiums.
Appraisal Reduction Amount
-------------------------------------------------
Appraisal Cumulative Most Recent
Loan Reduction ASER App. Red.
Number Effected Amount Date
-------------------------------------------------
-------------------------------------------------
Total
-------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 5 of 30
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2006-3 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 09/11/2006
Xxxxxxxx, XX 00000-0000 Determination Date: Record Date: 08/31/2006
-----------------------------------------------------------------------------------------------------------------------------------
Cash Reconciliation Detail
---------------------------------------------------------------------------------------------------------------------------------
Total Funds Collected
Interest:
Interest paid or advanced 0.00
Interest reductions due to Non-Recoverability Determinations 0.00
Interest Adjustments 0.00
Deferred Interest 0.00
Net Prepayment Interest Shortfall 0.00
Net Prepayment Interest Excess 0.00
Extension Interest 0.00
Interest Reserve Withdrawal 0.00
--------------
Total Interest Collected 0.00
Principal:
Scheduled Principal 0.00
Unscheduled Principal 0.00
Principal Prepayments 0.00
Collection of Principal after Maturity Date 0.00
Recoveries from Liquidation and Insurance Proceeds 0.00
Excess of Prior Principal Amounts paid 0.00
Curtailments 0.00
Negative Amortization 0.00
Principal Adjustments 0.00
--------------
Total Principal Collected 0.00
Other:
Prepayment Penalties/Yield Maintenance 0.00
Repayment Fees 0.00
Borrower Option Extension Fees 0.00
Equity Payments Received 0.00
Net Swap Counterparty Payments Received 0.00
--------------
Total Other Collected 0.00
--------------
Total Funds Collected 0.00
==============
Total Funds Distributed
Fees:
Master Servicing Fee 0.00
Trustee Fee 0.00
Certificate Administration Fee 0.00
Insurer Fee 0.00
Miscellaneous Fee 0.00
--------------
Total Fees 0.00
Additional Trust Fund Expenses:
Reimbursement for Interest on Advances 0.00
ASER Amount 0.00
Special Servicing Fee 0.00
Rating Agency Expenses 0.00
Attorney Fees & Expenses 0.00
Bankruptcy Expense 0.00
Taxes Imposed on Trust Fund 0.00
Non-Recoverable Advances 0.00
Other Expenses 0.00
--------------
Total Additional Trust Fund Expenses 0.00
Interest Reserve Deposit 0.00
Payments to Certificateholders & Others:
Interest Distribution 0.00
Principal Distribution 0.00
Prepayment Penalties/Yield Maintenance 0.00
Borrower Option Extension Fees 0.00
Equity Payments Paid 0.00
Net Swap Counterparty Payments Paid 0.00
--------------
Total Payments to Certificateholders & Others 0.00
--------------
Total Funds Distributed 0.00
==============
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 6 of 30
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2006-3 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 09/11/2006
Xxxxxxxx, XX 00000-0000 Determination Date: Record Date: 08/31/2006
-----------------------------------------------------------------------------------------------------------------------------------
Ratings Detail
---------------------------------------------------------------------------------------------------------------
Original Ratings Current Ratings (1)
------------------------------------------------------------------------------
Class CUSIP Fitch Xxxxx'x S & P Fitch Xxxxx'x S & P
---------------------------------------------------------------------------------------------------------------
X-0
X-0
X-0
X-0
A-1A
A-M
A-J
XW
B
C
D
E
F
G
H
J
K
L
M
N
O
P
V
---------------------------------------------------------------------------------------------------------------
NR - Designates that the class was not rated by the above agency at the time of original issuance.
X - Designates that the above rating agency did not rate any classes in this transaction at the time of original issuance.
N/A - Data not available this period.
1) For any class not rated at the time of original issuance by any particular rating agency, no request has been made subsequent
to issuance to obtain rating information, if any, from such rating agency. The current ratings were obtained directly from the
applicable rating agency within 30 days of the payment date listed above. The ratings may have changed since they were obtained.
Because the ratings may have changed, you may want to obtain current ratings directly from the rating agencies.
Fitch, Inc. Xxxxx'x Investors Service Standard & Poor's Rating Services
Xxx Xxxxx Xxxxxx Xxxxx 00 Xxxxxx Xxxxxx 00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
(000) 000-0000 (000) 000-0000 (000) 000-0000
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 7 of 30
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2006-3 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 09/11/2006
Xxxxxxxx, XX 00000-0000 Determination Date: Record Date: 08/31/2006
-----------------------------------------------------------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Aggregate Pool
Scheduled Balance State (3)
---------------------------------------------------------------- ----------------------------------------------------------------
% of % of
Scheduled # of Scheduled Agg. WAM Weighted # of Scheduled Agg. WAM Weighted
Balance Loans Balance Bal. (2) WAC Avg DSCR (1) State Props Balance Bal. (2) WAC Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
See footnotes on last page of this section.
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 8 of 30
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2006-3 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 09/11/2006
Xxxxxxxx, XX 00000-0000 Determination Date: Record Date: 08/31/2006
-----------------------------------------------------------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Aggregate Pool
Debt Service Coverage Ratio Property Type (3)
---------------------------------------------------------------- ----------------------------------------------------------------
Debt Service % of % of
Coverage # of Scheduled Agg. WAM WAC Weighted Property # of Scheduled Agg. WAM WAC Weighted
Ratio Loans Balance Bal. (2) Avg DSCR (1) Type Props Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
Note Rate Seasoning
---------------------------------------------------------------- ----------------------------------------------------------------
% of % of
Note # of Scheduled Agg. WAM WAC Weighted # of Scheduled Agg. WAM WAC Weighted
Rate Loans Balance Bal. (2) Avg DSCR (1) Seasoning Loans Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
See footnotes on last page of this section.
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 9 of 30
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2006-3 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 09/11/2006
Xxxxxxxx, XX 00000-0000 Determination Date: Record Date: 08/31/2006
-----------------------------------------------------------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Aggregate Pool
Anticipated Remaining Term (ARD and Balloon Loans) Remaining Stated Term (Fully Amortizing Loans)
---------------------------------------------------------------- ----------------------------------------------------------------
Anticipated % of Remaining % of
Remaining # of Scheduled Agg. WAM WAC Weighted Stated # of Scheduled Agg. WAM WAC Weighted
Term (2) Loans Balance Bal. (2) Avg DSCR (1) Term Loans Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
Remaining Amortization Term (ARD and Balloon Loans) Age of Most Recent NOI
---------------------------------------------------------------- ----------------------------------------------------------------
Remaining % of % of
Amortization # of Scheduled Agg. WAM WAC Weighted Age of Most # of Scheduled Agg. WAM WAC Weighted
Term Loans Balance Bal. (2) Avg DSCR (1) Recent NOI Loans Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
(1) Debt Service Coverage Ratios are updated periodically as new NOI figures become available from borrowers on an asset
level. In all cases the most recent DSCR provided by the Servicer is used. To the extent that no DSCR is provided by the
Servicer, information from the offering document is used. The Trustee makes no representations as to the accuracy of
the data provided by for this calculation.
(2) Anticipated Remaining Term and WAM are each calculated based upon the term from the current month to the earlier of the
Anticipated Repayment Date, if applicable, and the maturity date.
(3) Data in this table was calculated by allocating pro-rata the current loan information to the properties based upon the
Cut-off Date balance of each property as disclosed in the offering document.
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 10 of 30
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2006-3 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 09/11/2006
Xxxxxxxx, XX 00000-0000 Determination Date: Record Date: 08/31/2006
-----------------------------------------------------------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Group I
Scheduled Balance State (3)
---------------------------------------------------------------- ----------------------------------------------------------------
% of % of
Scheduled # of Scheduled Agg. WAM Weighted # of Scheduled Agg. WAM Weighted
Balance Loans Balance Bal. (2) WAC Avg DSCR (1) State Props Balance Bal. (2) WAC Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
See footnotes on last page of this section.
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 11 of 30
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2006-3 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 09/11/2006
Xxxxxxxx, XX 00000-0000 Determination Date: Record Date: 08/31/2006
-----------------------------------------------------------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Group I
Debt Service Coverage Ratio Property Type (3)
---------------------------------------------------------------- ----------------------------------------------------------------
Debt Service % of % of
Coverage # of Scheduled Agg. WAM WAC Weighted Property # of Scheduled Agg. WAM WAC Weighted
Ratio Loans Balance Bal. (2) Avg DSCR (1) Type Props Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
Note Rate Seasoning
---------------------------------------------------------------- ----------------------------------------------------------------
% of % of
Note # of Scheduled Agg. WAM WAC Weighted # of Scheduled Agg. WAM WAC Weighted
Rate Loans Balance Bal. (2) Avg DSCR (1) Seasoning Loans Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
See footnotes on last page of this section.
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 12 of 30
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2006-3 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 09/11/2006
Xxxxxxxx, XX 00000-0000 Determination Date: Record Date: 08/31/2006
-----------------------------------------------------------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Group I
Anticipated Remaining Term (ARD and Balloon Loans) Remaining Stated Term (Fully Amortizing Loans)
---------------------------------------------------------------- ----------------------------------------------------------------
Anticipated % of Remaining % of
Remaining # of Scheduled Agg. WAM WAC Weighted Stated # of Scheduled Agg. WAM WAC Weighted
Term (2) Loans Balance Bal. (2) Avg DSCR (1) Term Loans Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
Remaining Amortization Term (ARD and Balloon Loans) Age of Most Recent NOI
---------------------------------------------------------------- ----------------------------------------------------------------
Remaining % of % of
Amortization # of Scheduled Agg. WAM WAC Weighted Age of Most # of Scheduled Agg. WAM WAC Weighted
Term Loans Balance Bal. (2) Avg DSCR (1) Recent NOI Loans Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
(1) Debt Service Coverage Ratios are updated periodically as new NOI figures become available from borrowers on an asset
level. In all cases the most recent DSCR provided by the Servicer is used. To the extent that no DSCR is provided by the
Servicer, information from the offering document is used. The Trustee makes no representations as to the accuracy of
the data provided by for this calculation.
(2) Anticipated Remaining Term and WAM are each calculated based upon the term from the current month to the earlier of the
Anticipated Repayment Date, if applicable, and the maturity date.
(3) Data in this table was calculated by allocating pro-rata the current loan information to the properties based upon the
Cut-off Date balance of each property as disclosed in the offering document.
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 13 of 30
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2006-3 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 09/11/2006
Xxxxxxxx, XX 00000-0000 Determination Date: Record Date: 08/31/2006
-----------------------------------------------------------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Group II
Scheduled Balance State (3)
---------------------------------------------------------------- ----------------------------------------------------------------
% of % of
Scheduled # of Scheduled Agg. WAM Weighted # of Scheduled Agg. WAM Weighted
Balance Loans Balance Bal. (2) WAC Avg DSCR (1) State Props Balance Bal. (2) WAC Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
See footnotes on last page of this section.
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 14 of 30
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2006-3 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 09/11/2006
Xxxxxxxx, XX 00000-0000 Determination Date: Record Date: 08/31/2006
-----------------------------------------------------------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Group II
Debt Service Coverage Ratio Property Type (3)
---------------------------------------------------------------- ----------------------------------------------------------------
Debt Service % of % of
Coverage # of Scheduled Agg. WAM WAC Weighted Property # of Scheduled Agg. WAM WAC Weighted
Ratio Loans Balance Bal. (2) Avg DSCR (1) Type Props Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
Note Rate Seasoning
---------------------------------------------------------------- ----------------------------------------------------------------
% of % of
Note # of Scheduled Agg. WAM WAC Weighted # of Scheduled Agg. WAM WAC Weighted
Rate Loans Balance Bal. (2) Avg DSCR (1) Seasoning Loans Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
See footnotes on last page of this section.
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 15 of 30
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2006-3 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 09/11/2006
Xxxxxxxx, XX 00000-0000 Determination Date: Record Date: 08/31/2006
-----------------------------------------------------------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Group II
Anticipated Remaining Term (ARD and Balloon Loans) Remaining Stated Term (Fully Amortizing Loans)
---------------------------------------------------------------- ----------------------------------------------------------------
Anticipated % of Remaining % of
Remaining # of Scheduled Agg. WAM WAC Weighted Stated # of Scheduled Agg. WAM WAC Weighted
Term (2) Loans Balance Bal. (2) Avg DSCR (1) Term Loans Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
Remaining Amortization Term (ARD and Balloon Loans) Age of Most Recent NOI
---------------------------------------------------------------- ----------------------------------------------------------------
Remaining % of % of
Amortization # of Scheduled Agg. WAM WAC Weighted Age of Most # of Scheduled Agg. WAM WAC Weighted
Term Loans Balance Bal. (2) Avg DSCR (1) Recent NOI Loans Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
(1) Debt Service Coverage Ratios are updated periodically as new NOI figures become available from borrowers on an asset
level. In all cases the most recent DSCR provided by the Servicer is used. To the extent that no DSCR is provided by the
Servicer, information from the offering document is used. The Trustee makes no representations as to the accuracy of
the data provided by for this calculation.
(2) Anticipated Remaining Term and WAM are each calculated based upon the term from the current month to the earlier of the
Anticipated Repayment Date, if applicable, and the maturity date.
(3) Data in this table was calculated by allocating pro-rata the current loan information to the properties based upon the
Cut-off Date balance of each property as disclosed in the offering document.
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 16 of 30
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2006-3 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 09/11/2006
Xxxxxxxx, XX 00000-0000 Determination Date: Record Date: 08/31/2006
-----------------------------------------------------------------------------------------------------------------------------------
Mortgage Loan Detail
---------------------------------------------------------------------------------------------------------------------------
Anticipated Neg. Beginning Ending Paid
Loan Property Interest Principal Gross Repayment Maturity Amort Scheduled Scheduled Thru
Number ODCR Type (1) City State Payment Payment Coupon Date Date (Y/N) Balance Balance Date
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
Totals
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------
Appraisal Appraisal Res. Mod.
Loan Reduction Reduction Strat. Code
Number Date Amount (2) (3)
---------------------------------------------
---------------------------------------------
Totals
---------------------------------------------
--------------------------------------------------------------------------------
(1) Property Type Code
----------------------
MF - Multi-Family OF - Office
RT - Retail MU - Mixed Use
HC - Health Care LO - Lodging
IN - Industrial SS - Self Storage
WH - Warehouse OT - Other
MH - Mobile Home Park
(2) Resolution Strategy Code
----------------------------
1 - Modification 6 - DPO 10 - Deed in Lieu Of
2 - Foreclosure 7 - REO Foreclosure
3 - Bankruptcy 8 - Resolved 11 - Full Payoff
4 - Extension 9 - Pending Return 12 - Reps and Warranties
5 - Note Sale to Master Servicer 13 - Other or TBD
(3) Modification Code
---------------------
1 - Maturity Date Extension
2 - Amortization Change
3 - Principal Write-Off
4 - Combination
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 17 of 30
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2006-3 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 09/11/2006
Xxxxxxxx, XX 00000-0000 Determination Date: Record Date: 08/31/2006
-----------------------------------------------------------------------------------------------------------------------------------
NOI Detail
-------------------------------------------------------------------------------------------------------
Ending Most Most Most Recent Most Recent
Loan Property Scheduled Recent Recent NOI Start NOI End
Number ODCR Type City State Balance Fiscal NOI NOI Date Date
-------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------
Totals
-------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 18 of 30
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2006-3 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 09/11/2006
Xxxxxxxx, XX 00000-0000 Determination Date: Record Date: 08/31/2006
-----------------------------------------------------------------------------------------------------------------------------------
Principal Prepayment Detail
------------------------------------------------------------------------------------------------------------------------------------
Principal Prepayment Amount Prepayment Premium
Offering Document ------------------------------------------------------------------------------------------
Loan Number Cross-Reference Payoff Amount Curtailment Amount Percentage Premium Yield Maintenance Charge
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Totals
------------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 19 of 30
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2006-3 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 09/11/2006
Xxxxxxxx, XX 00000-0000 Determination Date: Record Date: 08/31/2006
-----------------------------------------------------------------------------------------------------------------------------------
Historical Detail
------------------------------------------------------------------------------------------------------------------------------------
Delinquencies
-------------------------------------------------------------------------------------------------------------------------
Distribution 30-59 Days 60-89 Days 90 Days or More Foreclosure REO Modifications
Date # Balance # Balance # Balance # Balance # Balance # Balance
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
Prepayments Rate and Maturities
--------------------------------------------------------------------------------------
Distribution Curtailments Payoff Next Weighted Avg.
Date # Balance # Balance Coupon Remit WAM
--------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------
Note: Foreclosure and REO Totals are excluded from the delinquencies.
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 20 of 30
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2006-3 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 09/11/2006
Xxxxxxxx, XX 00000-0000 Determination Date: Record Date: 08/31/2006
-----------------------------------------------------------------------------------------------------------------------------------
Delinquency Loan Detail
-----------------------------------------------------------------------------------------------------------------------------------
Offering # of Current Outstanding Status of Resolution
Document Months Paid Through P & I P & I Mortgage Strategy Servicing Foreclosure
Loan Number Cross-Reference Delinq. Date Advances Advances ** Loan (1) Code (2) Transfer Date Date
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Totals
-----------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------
Actual Outstanding
Principal Servicing Bankruptcy REO
Loan Number Balance Advances Date Date
--------------------------------------------------------------
--------------------------------------------------------------
Totals
--------------------------------------------------------------
-------------------------------------------------------------------------------------------------------
(1) Status of Mortgage Loan
---------------------------
A - Payment Not Received 2 - Two Months Delinquent
But Still in Grace Period 3 - Three or More Months Delinquent
B - Late Payment But Less 4 - Assumed Scheduled Payment
Than 1 Month Delinquent (Performing Matured Loan)
Current Foreclosure
0 - One Month Delinquent 7 - REO
1 - 9 -
(2) Resolution Strategy Code
----------------------------
1 - Modification 6 - DPO 10 - Deed In Lieu Of
2 - Foreclosure 7 - REO Foreclosure
3 - Bankruptcy 8 - Resolved 11 - Full Payoff
4 - Extension 9 - Pending Return 12 - Reps and Warranties
5 - Note Sale to Master Servicer 13 - Other or TBD
-------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 21 of 30
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2006-3 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 09/11/2006
Xxxxxxxx, XX 00000-0000 Determination Date: Record Date: 08/31/2006
-----------------------------------------------------------------------------------------------------------------------------------
Specially Serviced Loan Detail - Part 1
---------------------------------------------------------------------------------------------------------------------
Offering Servicing Resolution
Distribution Loan Document Transfer Strategy Scheduled Property Interest Actual
Date Number Cross-Reference Date Code (1) Balance Type (2) State Rate Balance
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------
Net Remaining
Distribution Operating NOI Note Maturity Amortization
Date Income Date DSCR Date Date Term
----------------------------------------------------------------------------
----------------------------------------------------------------------------
(1) Resolution Strategy Code
----------------------------
1 - Modification 6 - DPO 10 - Deed in Lieu Of
2 - Foreclosure 7 - REO Foreclosure
3 - Bankruptcy 8 - Resolved 11 - Full Payoff
4 - Extension 9 - Pending Return 12 - Reps and Warranties
5 - Note Sale to Master Servicer 13 - Other or TBD
(2) Property Type Code
----------------------
MF - Multi-Family OF - Office
RT - Retail MU - Mixed Use
HC - Health Care LO - Lodging
IN - Industrial SS - Self Storage
WH - Warehouse OT - Other
MH - Mobile Home Park
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 22 of 30
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2006-3 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 09/11/2006
Xxxxxxxx, XX 00000-0000 Determination Date: Record Date: 08/31/2006
-----------------------------------------------------------------------------------------------------------------------------------
Specially Serviced Loan Detail - Part 2
------------------------------------------------------------------------------------------------------------------------------------
Offering Resolution Site
Distribution Loan Document Strategy Inspection Appraisal Appraisal Other REO
Date Number Cross-Reference Code (1) Date Phase 1 Date Date Value Property Revenue Comment
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
(1) Resolution Strategy Code
----------------------------
1 - Modification 6 - DPO 10 - Deed in Lieu Of
2 - Foreclosure 7 - REO Foreclosure
3 - Bankruptcy 8 - Resolved 11 - Full Payoff
4 - Extension 9 - Pending Return 12 - Reps and Warranties
5 - Note Sale to Master Servicer 13 - Other or TBD
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 23 of 30
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2006-3 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 09/11/2006
Xxxxxxxx, XX 00000-0000 Determination Date: Record Date: 08/31/2006
-----------------------------------------------------------------------------------------------------------------------------------
Modified Loan Detail
-----------------------------------------------------------------------------------------------------------------------------------
Offering
Loan Document Pre-Modification Post-Modification Pre-Modification Post-Modification Modification Modification
Number Cross-Reference Balance Balance Interest Rate Interest Rate Date Description
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Totals
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 24 of 30
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2006-3 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 09/11/2006
Xxxxxxxx, XX 00000-0000 Determination Date: Record Date: 08/31/2006
-----------------------------------------------------------------------------------------------------------------------------------
Historical Liquidated Loan Detail
------------------------------------------------------------------------------------------------------------------------------------
Beginning Fees, Most Recent Gross Sales Net Proceeds Net Proceeds
Distribution Scheduled Advances, Appraised Proceeds or Received on Available for
Date ODCR Balance and Expenses* Value or BPO Other Proceeds Liquidation Distribution
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Current Total
------------------------------------------------------------------------------------------------------------------------------------
Cumulative Total
------------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
Date of Current Current Period Cumulative Loss to Loan
Distribution Realized Period Adj. Adjustment Adjustment with Cum
Date Loss to Trust to Trust to Trust to Trust Adj. to Trust
-----------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
Current Total
-----------------------------------------------------------------------------------------------------------------
Cumulative Total
-----------------------------------------------------------------------------------------------------------------
* Fees, Advances and Expenses also inlcude outstanding P & I advances and unpaid fees (servicing, trustee, etc.).
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 25 of 30
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2006-3 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 09/11/2006
Xxxxxxxx, XX 00000-0000 Determination Date: Record Date: 08/31/2006
-----------------------------------------------------------------------------------------------------------------------------------
Historical Bond/Collateral Loss Reconciliation Detail
------------------------------------------------------------------------------------------------------------------------------------
Offering Beginning Aggregate Prior Realized
Distribution Document Balance at Realized Loss Loss Applied Amounts Covered by Interest (Shortage)/
Date Cross-Reference Liquidation on Loans to Certificates Credit Support Excesses
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Totals
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Modification Additional Realized Loss Recoveries of (Recoveries)/
Distribution /Appraisal (Recoveries) Applied to Realized Losses Loss Applied to
Date Reduction Adj. /Expenses Certificates to Date Paid as Cash Certificate Interest
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Totals
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 26 of 30
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2006-3 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 09/11/2006
Xxxxxxxx, XX 00000-0000 Determination Date: Record Date: 08/31/2006
-----------------------------------------------------------------------------------------------------------------------------------
Interest Shortfall Reconciliation Detail - Part 1
------------------------------------------------------------------------------------------------------------------------------------
Offering Stated Principal Current Ending Special Servicing Fees
Document Balance at Scheduled ---------------------------------------
Cross-Reference Contribution Balance Monthly Liquidation Work Out ASER (PPIS) Excess
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Totals
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Offering Non-Recoverable Modified Interest Additional
Document (Scheduled Interest on Rate (Reduction) Trust Fund
Cross-Reference Interest) Advances /Excess Expense
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Totals
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 27 of 30
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2006-3 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 09/11/2006
Xxxxxxxx, XX 00000-0000 Determination Date: Record Date: 08/31/2006
-----------------------------------------------------------------------------------------------------------------------------------
Interest Shortfall Reconciliation Detail - Part 2
------------------------------------------------------------------------------------------------------------------------------------
Reimb of Advances to the Servicer
Offering Stated Principal Current Ending ------------------------------------
Document Balance at Scheduled Left to Reimburse Other (Shortfalls)/
Cross-Reference Contribution Balance Current Month Master Servicer Refunds Comments
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Totals
------------------------------------------------------------------------------------------------------------------------------------
Interest Shortfall Reconciliation Detail Part 2 Total 0.00
------------------------------------------------------------------------------------------------------------------------------------
Interest Shortfall Reconciliation Detail Part 1 Total 0.00
------------------------------------------------------------------------------------------------------------------------------------
Total Interest Shortfall Allocated to Trust 0.00
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 28 of 30
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2006-3 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 09/11/2006
Xxxxxxxx, XX 00000-0000 Determination Date: Record Date: 08/31/2006
-----------------------------------------------------------------------------------------------------------------------------------
Defeased Loan Detail
-----------------------------------------------------------------------------------------------------------------------------------
Offering Document Ending Scheduled
Loan Number Cross-Reference Balance Maturity Date Note Rate Defeasance Status
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Totals
-----------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 29 of 30
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2006-3 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 09/11/2006
Xxxxxxxx, XX 00000-0000 Determination Date: Record Date: 08/31/2006
-----------------------------------------------------------------------------------------------------------------------------------
Supplemental Reporting
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 30 of 30
EXHIBIT H
FORM OF REQUEST FOR REVIEW
__________________, 20_____
Xxxxx Fargo Bank, X.X.
Xxxxx Fargo Center, Sixth and Marquette
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attn: Corporate (CMBS) Securities - Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2006-3
Re: Pooling and Servicing Agreement dated as of August 1, 2006 (the
"Agreement") by and among Banc of America Commercial Mortgage Inc., as
Depositor, Bank of America, National Association, as Master Servicer, LNR
Partners, Inc., as Special Servicer and Xxxxx Fargo Bank, N.A., as Trustee
and REMIC Administrator for the Certificateholders of Commercial Mortgage
Pass-Through Certificates, Series 2006-3
Ladies and Gentlemen:
Pursuant to Section 2.02(b) of the above referenced Agreement,
[_________________] requests a review of the following Mortgage file:
Property Name: ________________________________________
Property Address: ________________________________________
Loan Number : ________________________________________
The results of such review should be returned to
[___________________] at the following address:
________________________________
________________________________
________________________________
Phone:__________________________
Fax:____________________________
EXHIBIT I
FORM OF NOTICE REGARDING PURCHASE OPTION EXERCISE
[Letterhead of Master Servicer]
[Date]
[Option Holder]
Re: Banc of America Commercial Mortgage Inc., Commercial Mortgage
Pass-Through Certificates, Series 2006-3
Ladies and Gentlemen:
You are the holder of an assignable option (the "Purchase Option")
to purchase Mortgage Loan number ____ from the Trust Fund, pursuant to Section
3.18 of the pooling and servicing agreement (the "Pooling and Servicing
Agreement") dated as of August 1, 2006, by and among Banc of America Commercial
Mortgage Inc., as depositor, Bank of America, National Association, as Master
Servicer, LNR Partners, Inc., as Special Servicer and Xxxxx Fargo Bank, N.A., as
Trustee and REMIC Administrator. Capitalized terms used herein and not otherwise
defined shall have the meaning set forth in the Pooling and Servicing Agreement.
This notice is to inform you that the exercise of your Purchase
Option in respect of Mortgage Loan number ___, pursuant to your Purchase Option
Notice dated _________, a copy of which is attached hereto, is effective.
Pursuant to Section 3.18(d) of the Pooling and Servicing Agreement and your
Purchase Option Notice, closing of [your] [_________'s] acquisition of Mortgage
Loan number ___ shall occur within ten (10) Business Days of your receipt of
this notice, at the place and in the manner described below.
[Describe closing mechanics. Describe documents or instruments
required to be prepared by Option Holder in connection with assignment and
release of the related Mortgage Loan.]
Upon payment of the Option Price, Mortgage Loan number ___ and the
related Mortgaged Property will be released and the related Mortgage Loan File
will be delivered to [you] [__________] or at [your] [_________'s] direction.
Drafts of such instruments of transfer or assignment, in each case
without recourse, reasonably necessary to vest in [you] or [________] the
ownership of Mortgage Loan ____, together with [describe other documents or
instruments reasonably required to consummate the purchase] should be delivered
to [____________] for review as soon as is practicable.
[Provide Master Servicer contact information.]
Please acknowledge receipt of this letter by signing the enclosed
copy and return it to my attention.
Sincerely,
By:
--------------------------------------
Name:
Title:
Option Holder's Acknowledgment
By:
--------------------------------------
Name:
Title:
Date:
EXHIBIT J
FORM OF
NOTICE AND CERTIFICATION
REGARDING DEFEASANCE OF MORTGAGE LOAN
For any loan that is not among ten (10) largest loans in pool, and that has an
outstanding balance less than both (a) $20,000,000 and (b) 5% of
outstanding pool balance
To: Standard & Poor's Ratings Services
a division of The XxXxxx-Xxxx Companies, Inc.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Commercial Mortgage Surveillance
From: Bank of America, National Association, in its capacity as Master
Servicer (the "Master Servicer") under the Pooling and Servicing
Agreement dated as of August 1, 2006 (the "Pooling and Servicing
Agreement"), among the Master Servicer, LNR Partners, Inc., as Special
Servicer and Xxxxx Fargo Bank, N.A., as Trustee and REMIC
Administrator.
Date: _________, 20___
Re: Banc of America Commercial Mortgage Inc. Commercial Mortgage
Pass-Through Certificates Series 2006-3
Mortgage Loan (the "Mortgage Loan") identified by loan number _____ on
the Mortgage Loan Schedule attached to the Pooling and Servicing
Agreement and heretofore secured by the Mortgaged Properties identified
on the Mortgage Loan Schedule by the following
names:____________________
____________________
Reference is made to the Pooling and Servicing Agreement
described above. Capitalized terms used but not defined herein have the
meanings assigned to such terms in the Pooling and Servicing Agreement.
[Note: all terms in this Certification must be conformed to terms used in
the Pooling and Servicing Agreement]
As Master Servicer under the Pooling and Servicing Agreement, we
hereby:
(a) Notify you that the Mortgagor has consummated a defeasance of
the Mortgage Loan pursuant to the terms of the Mortgage Loan, of the type
checked below:
_____ a full defeasance of the entire principal balance of the
Mortgage Loan; or
_____ a partial defeasance of a portion of the principal balance of
the Mortgage Loan that represents and, an allocated loan amount of $____________
or _______% of the entire principal balance of the Mortgage Loan;
(b) Certify that each of the following is true, subject to those
exceptions set forth with explanatory notes on Exhibit A hereto, which
exceptions the Master Servicer has determined, consistent with the Servicing
Standard, will have no material adverse effect on the Mortgage Loan or the
defeasance transaction:
(A) The Mortgage Loan Documents permit the defeasance, and the
terms and conditions for defeasance specified therein were satisfied
in all material respects in completing the defeasance.
(B) The defeasance was consummated on __________, 20__.
(C) The defeasance collateral consists of securities that (i)
constitute "government securities" as defined in Section 2(a)(16) of
the Investment Company Act of 1940 as amended (15 U.S.C. 80A1), (ii)
are listed as "Qualified Investments for `AAA' Financings" under
Paragraphs 1, 2 or 3 of "Cash Flow Approach" in Standard & Poor's
Public Finance Criteria 2000, as amended to the date of the
defeasance, (iii) are rated "AAA" by Standard & Poor's, (iv) if they
include a principal obligation, the principal due at maturity cannot
vary or change, and (v) are not subject to prepayment, call or early
redemption.
(D) The Master Servicer received an opinion of counsel (from
counsel approved by the Master Servicer in accordance with the
Servicing Standard) that the defeasance will not result in an
Adverse REMIC event.
(E) The Master Servicer determined that the defeasance
collateral will be owned by an entity (the "Defeasance Obligor")
that is a Single-Purpose Entity (as defined in Standard & Poor's
Structured Finance Ratings Real Estate Finance Criteria, as amended
to the date of the defeasance (the "S&P Criteria")) as of the date
of the defeasance, and after the defeasance owns no assets other
than the defeasance collateral and real property securing Mortgage
Loans included in the pool.
(F) The Master Servicer received written confirmation of the
crediting of the defeasance collateral to an Eligible Account (as
defined in the S&P Criteria) in the name of the Defeasance Obligor,
which account is maintained as a securities account by a securities
intermediary and has been pledged to the Trustee.
(G) The agreements executed in connection with the defeasance
(i) grant control of the pledged securities account to the trustee,
(ii) require the securities intermediary to make the scheduled
payments on the Mortgage Loan from the proceeds of the defeasance
collateral directly to the Master Servicer's collection account in
the amounts and on the dates specified in the Mortgage Loan
Documents or, in a partial defeasance, the portion of such scheduled
payments attributed to the allocated loan amount for the real
property defeased, increased by any defeasance premium specified in
the Mortgage Loan Documents (the "Scheduled Payments"), (iii) permit
reinvestment of proceeds of the defeasance collateral only in
Permitted Investments (as defined in the S&P Criteria), (iv) permit
release of surplus defeasance collateral and earnings on
reinvestment from the pledged securities account only after the
Mortgage Loan has been paid in full, if any such release is
permitted, (v) prohibit transfers by the Defeasance Obligor of the
Defeasance Collateral and subordinate liens against the defeasance
collateral, and (vi) provide for payment from sources other than the
defeasance collateral or other assets of the Defeasance Obligor of
all fees and expenses of the securities intermediary for
administering the defeasance and the securities account and all fees
and expenses of maintaining the existence of the Defeasance Obligor.
(H) The Master Servicer received written confirmation from a
firm of independent certified public accountants, who were approved
by the Master Servicer in accordance with the Servicing Standard
stating that (i) revenues from the defeasance collateral (without
taking into account any earnings on reinvestment of such revenues)
will be sufficient to timely pay each of the Scheduled Payments
after the defeasance including the payment in full of the Mortgage
Loan (or the allocated portion thereof in connection with a partial
defeasance) on its Maturity Date (or, in the case of an ARD Loan, on
its Anticipated Repayment Date), (ii) the revenues received in any
month from the defeasance collateral will be applied to make
Scheduled Payments within four (4) months after the date of receipt,
and (iii) interest income from the defeasance collateral to the
Defeasance Obligor in any calendar or fiscal year will not exceed
such Defeasance Obligor's interest expense for the Mortgage Loan (or
the allocated portion thereof in a partial defeasance) for such
year.
(I) The Mortgage Loan is not among the ten (10) largest loans
in the pool. The entire principal balance of the Mortgage Loan as of
the date of defeasance was less than both $20,000,000 and five
percent of pool balance, which is less than 5% of the aggregate
Certificate Balance of the Certificates as of the date of the most
recent Paying Agent's Monthly Certificateholder Report received by
us (the "Current Report").
(J) The defeasance described herein, together with all prior
and simultaneous defeasances of Mortgage Loans, brings the total of
all fully and partially defeased Mortgage Loans to
$__________________, which is _____% of the Aggregate Certificate
Balance of the Certificates as of the date of the Current Report.
(c) Certify that Exhibit B hereto is a list of the material
agreements, instruments, organizational documents for the Defeasance Obligor,
and opinions of counsel and independent accountants executed and delivered in
connection with the defeasance.
(d) Certify that the individual under whose hand the Master Servicer
has caused this Notice and Certification to be executed did constitute a
Servicing Officer as of the date of the defeasance described above.
(e) Agree to provide copies of all items listed in Exhibit B to you
upon request.
IN WITNESS WHEREOF, the Master Servicer has caused this Notice and
Certification to be executed as of the date captioned above.
BANK OF AMERICA, NATIONAL ASSOCIATION
By:
--------------------------------------
Name:
Title:
EXHIBIT K
FORM OF CERTIFICATION TO BE PROVIDED WITH FORM 00-X
Xxxx xx Xxxxxxx Commercial Mortgage Inc.
Commercial Mortgage Pass-Through Certificates
Series 2006-3 (the "Trust")
I, [identify the certifying individual], certify that:
(a) I have reviewed this annual report on Form 10-K, and all reports
on Form 10-D required to be filed in respect of the period covered by this
report on Form 10-K (the "Exchange Act Periodic Reports"), of the Trust formed
pursuant to the Pooling and Servicing Agreement (the ("Pooling and Servicing
Agreement") dated as of August 1, 2006 among Banc of America Commercial Mortgage
Inc., as Depositor, Bank of America, National Association, as Master Servicer,
LNR Partners, Inc., as Special Servicer and Xxxxx Fargo Bank, N.A., as Trustee
and REMIC Administrator;
(b) Based on my knowledge, the Exchange Act Periodic Reports, taken
as a whole, do not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading as of the
last day of the period covered by this annual report;
(c) Based on my knowledge, all of the distribution, servicing and
other information required to be provided under Form 10-D for the period covered
by this report is included in Exchange Act Periodic Reports;
(d) Based on my knowledge and the servicer compliance statements
required in this report under Item 1123 of Regulation AB, and except as
disclosed in the Exchange Act Periodic Report, the servicers have fulfilled
their obligations under the pooling and servicing agreement;
(e) All of the reports on assessment of compliance with servicing
criteria for asset-backed securities and their related attestation reports on
assessment of compliance with servicing criteria for asset-backed securities
required to be included in this report in accordance with Item 1122 of
Regulation AB and Exchange Act Rules 13a-18 and 15d-18 have been included as an
exhibit to this report, except as otherwise disclosed in this report. Any
material instances of noncompliance described in such reports have been
disclosed in this report on Form 10-K; and
(f) I have disclosed to the Trust's certified public accountants all
significant deficiencies relating to the Master Servicer's or Special Servicer's
compliance with the minimum servicing standards in accordance with a review
conducted in compliance with the Uniform Single Attestation Program for Mortgage
Bankers or similar standard as set forth in the Pooling and Servicing Agreement.
In giving the certifications above, I have reasonably relied on
information provided to me by the following unaffiliated parties: ________, as
Special Servicer, ________, as Trustee and REMIC Administrator, ________, as
Sub-Servicer, ________, and as Sub-Servicer, ________.
Date: _________________________
_______________________________
[Signature]
[Title]
EXHIBIT L
FORM OF CERTIFICATION TO BE
PROVIDED TO DEPOSITOR
Re: Banc of America Commercial Mortgage Trust 2006-3 (the "Trust"),
Commercial Mortgage Pass-Through Certificates, Series 2006-3
I, [identify the certifying individual], a[n] [title] of [identify
name of company] on behalf of [identify name of company], as [Trustee/Master
Servicer/Special Servicer] under that certain Pooling and Servicing Agreement
(the "Pooling and Servicing Agreement") dated as of August 1, 2006, among Banc
of America Commercial Mortgage Inc., as Depositor, Bank of America, National
Association, as Master Servicer, LNR Partners, Inc., as Special Servicer, and
Xxxxx Fargo Bank, N.A., as Trustee and REMIC Administrator certify to [identify
the individual signing the Xxxxxxxx-Xxxxx Certification], the Depositor and its
partners, representatives, affiliates, members, managers, directors, officers,
employees and agents, to the extent that the following information is within our
normal area of responsibilities and duties under the Pooling and Servicing
Agreement, and with the knowledge and intent that they will rely upon this
certification, that:
(a) [To be certified by the Trustee] [I have reviewed the
information provided by the Master Servicer and Special Servicer for inclusion
in the annual report on Form 10-K relating to the Trust for the fiscal year
[___] (the "Annual Report"), and all reports provided for inclusion on Form 8-K
containing statements to certificateholders filed in respect of periods included
in the year covered by that Annual Report (collectively with the Annual Reports,
the "Reports"), of the Trust;]
(b) [To be certified by the Trustee] [To the best of my knowledge,
the information in the Reports, to the extent prepared by the [Trustee] (but not
including any information provided to the [Trustee] by the Master Servicer or
Special Servicer, other than to the extent that such information has been
aggregated or manipulated by [Trustee]), taken as a whole, does not contain any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements made, in light of the circumstances under which such
statements were made, not misleading as of the last day of the period covered by
the Annual Report;]
(c) [To be certified by the Trustee] [To the best of my knowledge,
the distribution or servicing information required to be provided to the Trustee
by the Master Servicer and the Special Servicer under the Pooling and Servicing
Agreement for inclusion in the Reports is included in the Reports;]
(d) [To be certified by the Master Servicer and Special Servicer]
[Based on my knowledge, the servicing information required to be provided under
Section 3.15 of the pooling and servicing agreement is included in such
servicing reports delivered by the special servicer to the depositor;]
(e) [To be certified by the Master Servicer and Special Servicer]
[Based on my knowledge, the servicing information delivered by the special
servicer to the Trustee for inclusion in the Reports, taken as a whole, does not
contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements made, in light of the circumstances under which
such statements were made, not misleading with respect to the period covered by
such Reports;]
(f) [To be certified by the Master Servicer and Special Servicer] [I
am responsible for reviewing the activities performed by the special servicer
under the pooling and servicing agreement and based upon my knowledge and the
annual compliance reviews conducted in preparing the servicer compliance
statements required in such reports under Item 1123 of Regulation AB with
respect to the special servicer, and except as disclosed in the compliance
certificate delivered by the special servicer under Section 11.09 of the pooling
and servicing agreement, the special servicer has fulfilled its obligations
under the pooling and servicing agreement in all material respects;]
(g) [To be certified by the Master Servicer and Special Servicer]
[The accountant's statement delivered pursuant to Section 11.11 of the pooling
and servicing agreement discloses all significant deficiencies relating to the
special servicer's compliance with the minimum servicing standards based upon
the report provided by an independent public accountant, after conducting a
review in compliance with the Uniform Single Attestation Program for Mortgage
Bankers or similar procedure, as set forth in the pooling and servicing
agreement;]
(h) [To be certified by the Master Servicer and Special Servicer] [I
am responsible for reviewing the activities performed by [the Master Servicer]
[the Special Servicer] under the Pooling and Servicing Agreement and based upon
my knowledge and the annual compliance review required under the Pooling and
Servicing Agreement, and except as disclosed in the annual report on Form 10-K
for the fiscal year [___], or in any reports on Form 8-K containing statements
to certificateholders filed in respect of periods included in the year covered
by that annual report, [the Master Servicer] [the Special Servicer] has
fulfilled its obligations under the Pooling and Servicing Agreement in all
material respects, including the provision of all Reports required to be
submitted to the Trustee thereunder, and that, to the knowledge of [the Master
Servicer] [the Special Servicer], based upon the review required under the
Pooling and Servicing Agreement with respect to [the Master Servicer] [the
Special Servicer], such reports do not contain any material misstatements or
omissions; and]
(i) [To be certified by the Master Servicer and Special Servicer]
[All of the reports on assessment of compliance with servicing criteria for
asset-backed securities and their related attestation reports on assessment of
compliance with servicing criteria for asset-backed securities with respect to
the special servicer required to be delivered by the special servicer under the
pooling and servicing agreement in accordance with Item 1122 of Regulation AB
and Exchange Act Rules 13a-18 and 15d-18 have been delivered pursuant to the
terms of the pooling and servicing agreement. Any material instances of
noncompliance with the servicing criteria have been disclosed in such reports.]
Date: _________________________
[NAME OF COMPANY]
_______________________________
[Signature]
[Title]
EXHIBIT M
FORM OF CONFIDENTIALITY AGREEMENT
[Date]
Bank of America, National Association
NC1-026-06-01
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Banc of America Commercial Mortgage Inc., Commercial Mortgage
Pass-Through Certificates, Series 2006-3
Re: Information Regarding Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2006-3
Ladies and Gentlemen:
In connection with the Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2006-3 (the
"Certificates"), we acknowledge that we will be furnished by the
[Servicer][Special Servicer] (and may have been previously furnished) with
certain information (the "Information"), provided by Xxxxx Fargo Bank, N.A. , as
trustee (the "Trustee"), Banc of America Commercial Mortgage Inc., as depositor
(the "Depositor") and the borrowers under certain of the Mortgage Loans. For the
purposes of this letter agreement (this "Agreement"), "Representative" of a
Person refers to such Person's directors, officers, employees, and agents; and
"Person" refers to any individual, group or entity.
In connection with and in consideration of our being provided with
Information, we hereby acknowledge and agree that we are requesting and will use
the Information solely for purposes of making investment decisions with respect
to the above-referenced Certificates and will not disclose such Information to
any other Person or entity unless required to do so by law; provided such
Information may be disclosed to the auditors and regulators of the undersigned
or to any person or entity that is contemplating the purchase of any Certificate
held by the undersigned or of an interest therein, but only if such person or
entity confirms in writing such contemplation of a prospective ownership
interest and agrees in writing to keep such Information confidential.
This Agreement shall not apply to any of the Information which: (i)
is or becomes generally available and known to the public other than as a result
of a disclosure directly or indirectly by us or any of our Representatives; (ii)
becomes lawfully available to us on a non-confidential basis from a source other
than you or one of your Representatives, which source is not bound by a
contractual or other obligation of confidentiality to any Person; or (iii) was
lawfully known to us on a non-confidential basis prior to its disclosure to us
by you.
Notwithstanding anything to the contrary contained herein, we (and
each of our employees, representative or other agents) may disclose to any and
all persons, without limitation of any kind, the federal income tax treatment
and tax structure of the above-referenced Certificates, any fact relevant to
understanding the federal tax treatment or tax structure of the above-referenced
Certificates, and all materials of any kind (including opinions or other tax
analysis) relating to such federal tax treatment or tax structure other than the
identity of the Depositor and information that would permit the identification
of the Depositor.
Capitalized terms used but not defined herein shall have the meaning
assigned thereto in that certain Pooling and Servicing Agreement, dated as of
August 1, 2006, by and among the Depositor, the Trustee, Bank of America,
National Association, as Servicer (the "Servicer") and LNR Partners, Inc., as
Special Servicer (the "Special Servicer").
The undersigned shall be fully liable for any breach of this
agreement by itself or any of its Representatives and shall indemnify the
Depositor, the Servicer, the Special Servicer, the Trustee and the Trust Fund
for any loss, liability or expense incurred thereby with respect to any such
breach by the undersigned or any of its Representatives.
This Agreement, when signed by us, will constitute our agreement
with respect to the subject matter contained herein.
Very truly yours,
[NAME OF ENTITY]
By:
--------------------------------------
Name:
Title:
EXHIBIT N
FORM OF REGULATION S CERTIFICATE
Xxxxx Fargo Bank, X.X.
Xxxxx Fargo Center, Sixth and Marquette
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attn: Corporate (CMBS) Securities - Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2006-3
Re: Transfer of Banc of America Commercial Mortgage Inc., Commercial
Mortgage Pass-Through Certificates, Series 2006-3, Class [ ]
Ladies and Gentlemen:
Reference is made to the Pooling and Servicing Agreement, dated as
of August 1, 2006 (the "Pooling and Servicing Agreement"), by and among Banc of
America Commercial Mortgage Inc., as depositor (the "Depositor"), Bank of
America, National Association, as Master Servicer (the "Master Servicer"), LNR
Partners, Inc., as Special Servicer (the "Special Servicer") and Xxxxx Fargo
Bank, N.A., as Trustee (the "Trustee"). Capitalized terms used but not defined
herein shall have the meanings ascribed to them in the Pooling and Servicing
Agreement.
This letter relates to US $[__________] aggregate Certificate
Principal Amount of Certificates (the "Certificates") which are held in the form
of the Domestic Global Certificate (CUSIP No. ) with the Depository in the name
of [insert name of transferor] (the "Transferor"). The Transferor has requested
a transfer of such beneficial interest in the Certificates for an interest in
the Regulation S Global Certificate (ISIN No. ).
In connection with such request, and in respect of such
Certificates, the Transferor does hereby certify that such transfer has been
effected in accordance with the transfer restrictions set forth in the Pooling
and Servicing Agreement and the Certificates and (i) with respect to transfers
made in accordance with Regulation S under the Securities Act of 1933, as
amended (the "Securities Act"), the Transferor does hereby certify that:
(a) the offer of the Certificates was not made to a person in the United
States,
[(b)__at the time the buy order was originated, the Transferee was
outside the United States or the Transferor and any person acting on its behalf
reasonably believed that the Transferee was outside the United States,]*
[2.___the transaction was executed in, on or through the facilities
of a designated offshore securities market and neither the undersigned nor any
person acting on its behalf knows that the transaction was pre-arranged with a
buyer in the United States,]*
(c)___no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or 904(b) of Regulation S, as applicable, and
(d)___the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act;
or (ii) with respect to transfers made in reliance on Rule 144 under the
Securities Act, the Transferor does hereby certify that the Certificates that
are being transferred are not "restricted securities" as defined in Rule 144
under the Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Servicer and the
Special Servicer.
* Insert one of these two provisions, which come from the definition of
"offshore transaction" in Regulation S.
[Insert Name of Transferor]
By:
--------------------------------------
Name:
Title:
Dated: _________ __, __
EXHIBIT O
FORM OF TRANSFER CERTIFICATE
FOR EXCHANGE OR TRANSFER FROM
DOMESTIC GLOBAL CERTIFICATE TO REGULATION S
GLOBAL CERTIFICATE DURING THE RESTRICTED PERIOD
(Exchanges or transfers pursuant to
Section 5.02(d) of the Pooling and Servicing Agreement)
Xxxxx Fargo Bank, X.X.
Xxxxx Fargo Center, Sixth and Marquette
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attn: Corporate (CMBS) Securities - Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2006-3
Re: Transfer of Banc of America Commercial Mortgage Inc., Commercial
Mortgage Pass-Through Certificates, Series 2006-3, Class [ ]
Reference is hereby made to the Pooling and Servicing Agreement,
dated as of August 1, 2006 (the "Pooling and Servicing Agreement"), by and among
Banc of America Commercial Mortgage Inc., as depositor (the "Depositor"), Bank
of America, National Association, as Master Servicer (the "Master Servicer"),
LNR Partners, Inc., as Special Servicer (the "Special Servicer") and Xxxxx Fargo
Bank, N.A., as Trustee (the "Trustee"). Capitalized terms used but not defined
herein shall have the meanings given to them in the Pooling and Servicing
Agreement.
This letter relates to US $[__________] aggregate Certificate
Principal Amount of Certificates (the "Certificates") which are held in the form
of the Domestic Global Certificate (CUSIP No. _____________) with the Depository
in the name of [insert name of transferor] (the "Transferor"). The Transferor
has requested a transfer of such beneficial interest for an interest in the
Regulation S Global Certificate (CUSIP No. ____________) to be held with
[Euroclear] [Clearstream]* (ISIN No. _____________) through the Depository.
In connection with such request and in respect of such Certificates,
the Transferor does hereby certify that such transfer has been effected in
accordance with the transfer restrictions set forth in the Pooling and Servicing
Agreement and pursuant to and in accordance with Regulation S under the
Securities Act of 1933, as amended (the "Securities Act"), and accordingly the
Transferor does hereby certify that:
(a) the offer of the Certificates was not made to a person in the
United States,
[(b)__at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any persons acting on its behalf
reasonably believed that the transferee was outside the United States,]**
[2.___the transaction was executed in, on or through the facilities
of a designated offshore securities market and neither the Transferor nor any
person acting on its behalf knows that the transaction was prearranged with a
buyer in the United States,]
(c) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or 904(b) of Regulation S, as applicable, and
(d) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Servicer and the
Special Servicer.
[Insert Name of Transferor]
By:
--------------------------------------
Name:
Title:
Dated: _____________, ___
----------
* Text not in original
** Insert one of these two provisions, which come from the definition of
"offshore transaction" in Regulation S.
EXHIBIT P
FORM OF TRANSFER CERTIFICATE
FOR EXCHANGE OR TRANSFER FROM DOMESTIC
GLOBAL CERTIFICATE TO REGULATION S GLOBAL
CERTIFICATE AFTER THE RESTRICTED PERIOD
(Exchange or transfers pursuant to
Section 5.02(d) of the Pooling and Servicing Agreement)
Xxxxx Fargo Bank, X.X.
Xxxxx Fargo Center, Sixth and Marquette
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attn: Corporate (CMBS) Securities - Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2006-3
Re: Transfer of Banc of America Commercial Mortgage Inc., Commercial
Mortgage Pass-Through Certificates, Series 2006-3, Class [ ]
Reference is hereby made to the Pooling and Servicing Agreement,
dated as of August 1, 2006 (the "Pooling and Servicing Agreement"), by and among
Banc of America Commercial Mortgage Inc., as depositor (the "Depositor"), Bank
of America, National Association, as Master Servicer (the "Master Servicer"),
LNR Partners, Inc., as Special Servicer (the "Special Servicer") and Xxxxx Fargo
Bank, N.A., as Trustee (the "Trustee"). Capitalized terms used but not defined
herein shall have the meanings given to them in the Pooling and Servicing
Agreement.
This letter relates to US $[__________] aggregate Certificate
Principal Amount of Certificates (the "Certificates") which are held in the form
of the Domestic Global Certificate (CUSIP No. _____) with the Depository in the
name of [insert name of transferor] (the "Transferor"). The Transferor has
requested a transfer of such beneficial interest in the Certificates for an
interest in the Regulation S Global Certificate (ISIN No.
-----).
In connection with such request, and in respect of such
Certificates, the Transferor does hereby certify that such transfer has been
effected in accordance with the transfer restrictions set forth in the Pooling
and Servicing Agreement and, (i) with respect to transfers made in reliance on
Regulation S under the Securities Act of 1933, as amended (the "Securities
Act"), the Transferor does hereby certify that:
(a) the offer of the Certificates was not made to a person in the
United States,
[(b)__at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any person acting on its behalf
reasonably believed that the transferee was outside the United States,]
(c) the transaction was executed in, on or through the facilities of
a designated offshore securities market and neither the Transferor nor any
person acting on its behalf knows that the transaction was prearranged with a
buyer in the United States,]*
(d) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or 904(b) of Regulation S, as applicable, and
(e) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act;
or (ii) with respect to transfers made in reliance on Rule 144 under
the Securities Act, the Transferor does hereby certify that the Certificates
that are being transferred are not "restricted securities" as defined in Rule
144 under the Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Servicer and the
Special Servicer.
[Insert Name of Transferor]
By:
--------------------------------------
Name:
Title:
Dated: ____ __, ____
** Insert one of these two provisions, which come from the definition of
"offshore transaction" in Regulation S.
EXHIBIT Q
FORM OF TRANSFER CERTIFICATE
FOR EXCHANGE OR TRANSFER FROM REGULATION S GLOBAL
CERTIFICATE TO DOMESTIC GLOBAL CERTIFICATE
(Exchange or transfers pursuant to
Section 5.02(d) of the Pooling and Servicing Agreement)
Xxxxx Fargo Bank, X.X.
Xxxxx Fargo Center, Sixth and Marquette
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attn: Corporate (CMBS) Securities - Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2006-3
Re: Transfer of Banc of America Commercial Mortgage Inc., Commercial
Mortgage Pass-Through Certificates, Series 2006-3, Class [ ]
Reference is hereby made to the Pooling and Servicing Agreement,
dated as of August 1, 2006 (the "Pooling and Servicing Agreement"), by and among
Banc of America Commercial Mortgage Inc., as depositor (the "Depositor"), Bank
of America, National Association, as Master Servicer (the "Master Servicer"),
LNR Partners, Inc., as Special Servicer (the "Special Servicer") and Xxxxx Fargo
Bank, N.A., as Trustee (the "Trustee"). Capitalized terms used but not defined
herein shall have the meanings given to them in the Pooling and Servicing
Agreement.
This letter relates to US $[__________] aggregate Certificate
Principal Amount of Certificates (the "Certificates") which are held in the form
of the Regulation S Global Certificate (CUSIP No. __________) with [Euroclear]
[Clearstream]* (ISIN No. __________) through the Depository in the name of
[insert name of transferor] (the "Transferor"). The Transferor has requested a
transfer of such beneficial interest in the Certificates for an interest in the
Domestic Global Certificate (CUSIP No. __________).
In connection with such request, and in respect of such
Certificates, the Transferor does hereby certify that such Certificates are
being transferred in accordance with (i) the transfer restrictions set forth in
the Pooling and Servicing Agreement and (ii) Rule 144A under the Securities Act
to a transferee that the Transferor reasonably believes is purchasing the
Certificates for its own account with respect to which the transferee exercises
sole investment discretion and the transferee and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A, in each case in
a transaction meeting the requirements of Rule 144A and in accordance with any
applicable securities laws of any state or other jurisdiction of the United
States.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Servicer, the
Special Servicer and Banc of America Securities LLC, the Placement Agent of the
offering of the Certificates.
[Insert Name of Transferor]
By:
--------------------------------------
Name:
Title:
Dated: ____ __, ____
--------
SCHEDULE I
Sequence Loan Number Loan Seller Property Name
-------- ----------- ----------- -------------
1 3400190 Bank of America Xxxxx Building
2 59124 Bank of America Saugus Colony
3 3401551 Bank of America Herald Center
4 3219703 Bank of America Southern Hills Mall
5 3401226 Bank of America One Stamford Forum
6 59799 Bank of America Republic Place
7 3219702 Bank of America Xxxxxxxx Xxxx
0 00000 Xxxx xx Xxxxxxx FBI Regional HQ Building
9 3400144 Bank of America One Campus Drive
10 3400086 Bank of America Phoenix Airport Marriott
11 59643 Bank of America Downey Landing
12 3400064 Bank of America Minneapolis Airport Marriott
13 59770 Bank of America Fifth Third Center - Columbus, OH
14 3400163 Bank of America Xxxxxxx Plaza
15 3400274 Bank of America Xxxxxx Xxxxxxx
00 00000 Xxxx of America Fair Lakes Promenade
17.1 59743 Bank of America Gateway Academy - 0000 Xxxxxx Xxxxxx
17.2 59743 Bank of America Gateway Academy - 00000 Xxxxxxxxxx Xxxxxxx Xxxxx
17.3 59743 Bank of America Gateway Academy - 0000 Xxxxxxxxxx Xxxx
17.4 59743 Bank of America Gateway Academy - 0000 XxXxx Xxxx
17.5 59743 Bank of America Gateway Academy - 0000 Xxxx Xxxxxx Xxxxxx
17.6 59743 Bank of America Gateway Academy - 0000 Xxxxx Xxxxxxxx Xxxxxx
17.7 59743 Bank of America Gateway Academy - 0000 Xxxx Xxxxxxx Xxxxxx
17.8 59743 Bank of America Gateway Academy - 000 Xxxx Xxxxx Xxxxxx
17.9 59743 Bank of America Xxxxxxx Xxxxxxx - 00000 Xxxx Xxxxxx Xxxxx
17.1 59743 Bank of America Gateway Academy - 0000 Xxxxxxxxx Xxxx
17.11 59743 Bank of America Gateway Academy - 000 Xxxx Xxxxx Xxxx
17.12 59743 Bank of America Gateway Academy - 0000 Xxxxxx Xxxx
17.13 59743 Bank of America Gateway Academy - 0000 Xxxxxx Xxxxxxxxx
17.14 59743 Bank of America Gateway Academy - 000 Xxxxxxxxxx Xxxxx
17.15 59743 Bank of America Gateway Academy - 0000 Xxx Xxxxxxx Xxxx
17.16 59743 Bank of America Gateway Academy - 0000 Xxxxxxx Xxxxx
17.17 59743 Bank of America Gateway Academy - 891 Xxxxxxx Xxxxx Boulevard
17.18 59743 Bank of America Gateway Academy - 000 Xxxx Xxxxxx Xxxx
17.19 59743 Bank of America Gateway Academy - 0000 Xxxxxxxxxxxx Xxxx Extension
17 59743 Bank of America Gateway Academy Centers (Rollup)
18 59817 Bank of America Cathedral City Marketplace
19 3400323 Bank of America San Xxxxxx Autodesk
20 3401265 Bank of America Greenway Village Apartments
21 3401474 Bank of America South Bank
22 3401394 Bank of America Boscov's Monroeville Mall
23 3401628 Bank of America 0000 Xxxxxxxxx Xxxx
24 3401398 Xxxx xx Xxxxxxx Xxxxxx'x Xxxxx Xxxxx Xxxxxxx
00 00000 Bank of America Fairfax Retail
26 59728 Bank of America Uptown Center
27 3401393 Bank of America Boscov's Marley Station
28 3401399 Bank of America Boscov's White Xxxxx
29 3401396 Bank of America Boscov's Xxxxxx Xxxxx
30 59512 Bank of America Xxxxxxxx Xxxxx Apartments
31 3401391 Bank of America Boscov's Deptford Mall
32 3400011 Bank of America XX Xxxxxxx
33 3402023 Bank of America Xxxxxxx Retail & Theater Center
Subtotal Crossed Loans
34 3400009 Bank of America 0000-0000 Xxxxxxxx Xxxxxx
35 3401397 Bank of America Boscov's Oxford Valley Mall
36 3401395 Bank of America Boscov's Xxxxxxxxxx Mall
37 59764 Bank of America Xxxxxxxxxx Xxxxx
00 00000 Bank of America Leamington Building
39.1 3400299 Bank of America New Hampshire Retail Portfolio - Shaw's Lancaster
39.2 3400299 Bank of America New Hampshire Retail Portfolio - Xxxx'x Woodsville
39.3 3400299 Bank of America New Hampshire Retail Portfolio - Xxxxxxx Ledge
39 3400299 Bank of America New Hampshire Retail Portfolio (Rollup)
40 3400289 Bank of America Cedar Hill Pointe
41 59660 Bank of America Xxxxxx Xxxxxxx Xxxxxx
00 00000 Xxxx of America Baylor Medical Plaza
43 3400057 Bank of America Signature Self Storage
44 59610 Bank of America Best Western Laguna Brisas
45 16340 Bank of America Columbia Bank Building (WA)
46 15843 Bank of America Xxxxxx Xxxxx Xxxxxx Xxxxxxxxxx
00 00000 Bank of America The Shops at Fair Lakes
48 17815 Bank of America River Manor
49 59450 Bank of America Hilton Garden Inn
50 3401225 Bank of America London Park Apartments
51 3401439 Bank of America Venice & Western Retail
52 3400287 Bank of America Ladera Ranch Self Storage
53 59761 Bank of America DEA Warehouse/Tech Ops Building
54 17402 Bank of America Bank of America Building
55.1 59508 Bank of America RCC Office Portfolio - Park Forest Building
55.2 00000 Xxxx xx Xxxxxxx XXX Xxxxxx Xxxxxxxxx - Xxxxxxxxxxx Xxxxxx
55 59508 Bank of America RCC Office Portfolio (Rollup)
56 59806 Bank of America Sundance Plaza
57 13732 Bank of America Milrand Retail
58 3400133 Bank of America Xxxxxx Self Storage
59 3401203 Bank of America Xxxxx Xxxxx Xxxxxxxxxx
00 00000 Xxxx xx Xxxxxxx Raley's Newark
61 59800 Bank of America Xxxxxxx Center
62 18486 Bank of America Hampton Inn Hotel & Suites - Idaho Center
63 59630 Bank of America Windsor Townhomes
64 59769 Bank of America Eagle River Hilton Garden Inn
65 18227 Bank of America U-Store America
66 3400285 Bank of America Business Exchange Building
67 59808 Bank of America Yorba Canyon Center
68 59762 Bank of America West Trop Storage
69 59815 Bank of America Empire Terrace Apts
70 3400291 Bank of America Green Acres Mini Storage
71 59809 Bank of America Henry's Farmers Market
72 59198 Bank of America Walgreens - 56th and Pacific
73 59793 Bank of America Temple Street Garage
74 18075 Bank of America Comfort Suites-St. Augustine
75.1 17366 Bank of America Xxxxxxx Street Properties - Lowell Rd
75.2 17366 Bank of America Xxxxxxx Street Properties - Xxxxx St
75.3 17366 Bank of America Xxxxxxx Street Properties - Xxxxxx St
75 17366 Bank of America Xxxxxxx Street Properties (Rollup)
76 59398 Bank of America Lockers Self Storage
77 3400229 Bank of America Nottingham Village
78 17595 Bank of America Xxxxxxx Xxxxxxx Xxxxxxxxxx
00 00000 Xxxx xx Xxxxxxx 00 Xxxxxxx Xxxxxx
80 59798 Bank of America Garland Firewheel
81 3400039 Bank of America Melrose Garden Apartments
82 17391 Bank of America Xxxxxxx Xxxxxx
00 00000 Xxxx xx Xxxxxxx Sandpiper Apartments
84 16369 Bank of America Coastal Mini Storage - Xxxxxxxx City
85 59784 Bank of America Securlock at Xxxxx Xxxxx
00 00000 Xxxx xx Xxxxxxx Mayflower Apartments
87 59795 Bank of America Country Club Apartments
88 59791 Bank of America Eagle River Office Building III
89 3220308 Bank of America RVS Chickasaw
90 18046 Bank of America Shoppes at Red Bug
91 17596 Bank of America Queensdale Apartments
92 18509 Bank of America Xxxxxxx Mini-Storage
93 17958 Bank of America CGL Enterprises
94 59765 Bank of America Flamingo Sandhill
95 59710 Bank of America A to Z Mini Storage
96 59802 Bank of America XxXxxxxx Plaza
Totals
Sequence Street Address City State Zip Code Mortgage Rate (1)
-------- -------------- ---- ----- -------- -----------------
1 000 00xx Xxxxxx, XX Xxxxxxxxxx XX 00000 6.138%
2 00000 Xxxx Xxxxxxx Xxxxx Xxxxx Xxxxxxx XX 00000 4.947%
3 0000 Xxxxxxxx Xxx Xxxx XX 00000 6.058%
4 0000 Xxxxxxxx Xxxx Xxxxx Xxxx XX 00000 5.794%
5 000 Xxxxxxx Xxxxxxxxx Xxxxxxxx XX 00000 6.373%
6 0000 Xxx Xxxxxx, XX Xxxxxxxxxx XX 00000 5.940%
7 0000 Xxxxx Xxxxx Xxxxxx Xxxxx Xxxx XX 00000 5.794%
8 0000 Xxxx Xxxxxxxxx Xxxx Xxxxxxx XX 00000 5.490%
9 Xxx Xxxxxx Xxxxx Xxxxxxxxxx XX 00000 6.151%
10 0000 Xxxxx 00xx Xxxxxx Xxxxxxx XX 00000 6.293%
11 12000 - 00000 Xxxxxxxx Xxxxxxxxx Xxxxxx XX 00000 5.496%
12 0000 Xxxxxxxx Xxxxxxxxx Xxxx Xxxxxxxxxxx XX 00000 6.363%
13 00 Xxxx Xxxxx Xxxxxx Xxxxxxxx XX 00000 6.087%
14 15350 & 00000 Xxxxxxx Xxx Xxx Xxxx XX 00000 5.945%
15 0000-0000 Xxxx Xxxxxxx Xxxxxxx XX 00000 6.004%
16 12189-12249 Xxxx Xxxxx Xxxxxxxxx Xxxxxxx XX 00000 5.576%
17.1 0000 Xxxxxx Xxxxxx Xxxxxxxxxx XX 00000
17.2 00000 Xxxxxxxxxx Xxxxxxx Xxxxx Xxxxxxxxx XX 00000
17.3 0000 Xxxxxxxxxx Xxxx Xxxxxxxxx XX 00000
17.4 0000 XxXxx Xxxx Xxxxxxxxx XX 00000
17.5 0000 Xxxx Xxxxxx Xxxxxx Xxxxxxxxx XX 00000
17.6 0000 Xxxxx Xxxxxxxx Xxxxxx Xxxxxx XX 00000
17.7 0000 Xxxx Xxxxxxx Xxxxxx Xxxxxxxxxx XX 00000
17.8 000 Xxxx Xxxxx Xxxxxx Xxxxxxxxxx XX 00000
17.9 00000 Xxxx Xxxxxx Xxxxx Xxxxxxxxx XX 00000
17.1 0000 Xxxxxxxxx Xxxx Xxxxxxxx Xxxxx XX 00000
17.11 000 Xxxx Xxxxx Xxxx Xxxxxx Xxxxx XX 00000
17.12 0000 Xxxxxx Xxxx Xxxxxxxxxx XX 00000
17.13 0000 Xxxxxx Xxxxxxxxx Xxxxxxxxx XX 00000
17.14 000 Xxxxxxxxxx Xxxxx Xxxxxxxx XX 00000
17.15 0000 Xxx Xxxxxxx Xxxx Xxxxxxxxxxx XX 00000
17.16 0000 Xxxxxxx Xxxxx Xxxxxxxxxx XX 00000
17.17 000 Xxxxxxx Xxxxx Xxxxxxxxx Xxxxx Xxxxxxxx XX 00000
17.18 000 Xxxx Xxxxxx Xxxx Xxxxxxx XX 00000
17.19 0000 Xxxxxxxxxxxx Xxxx Xxxxxxxxx Xxxxxxxx XX 00000
17 Various Various Various Various 6.607%
18 34021-34491 Date Xxxx Xxxxx Xxxxxxxxx Xxxx XX 00000 5.715%
19 000 XxXxxxx Xxxxxxx Xxx Xxxxxx XX 00000 5.897%
20 0000 Xxxxxxxx Xxxxxxx Xxxxx Xxxxxxxxx XX 00000 5.990%
21 000 Xxxx Xxxxxxxx Xxxxxx Xxx Xxxxxxx XX 00000 5.910%
22 000 Xxxxxxxxxxx Xxxx Xxxxxxxxxxx XX 00000 6.460%
23 0000-0000 Xxxxxxxxx Xxxxxxxxx Xxxx Xxx Xxxxxx XX 00000 6.124%
24 000 Xxxxx Xxxxx Xxxxxxx Xxxxx Xx. Xxxxx XX 00000 6.460%
25 12993, 12995 & 00000 Xxxx Xxxxx Xxxxxxxx Xxxxxx Xxxxxxx XX 00000 5.576%
26 0000 Xxxxxx Xxxxxx Xxxxxx XX 00000 5.673%
27 0000 Xxxxxxx Xxxxxxx Xxxx Xxxxxx XX 00000 6.460%
28 0000 Xxxxx Xxxx Xxxxxxxxx Xxxxxxxxxx XX 00000 6.460%
29 00000 Xxxx Xxx Xxxxxx Xxxxxx Xxxxx XX 00000 6.460%
30 000 Xxxx Xxx Xxxx Xxxxxxxxxx Xxxx XX 00000 5.567%
31 0000 Xxxxxxxx Xxxxxx Xxxx Xxxxxxxx XX 00000 6.460%
32 000 Xxxxxxxx Xxxxxx Xxxxxxxxx XX 00000 6.135%
33 000 X Xxxxxx Xxxxxxxxx XX 00000 6.255%
34 0000-0000 Xxxxxxxx Xxxxxx Xxxxxxx XX 00000 6.055%
35 0000 Xxxx Xxxxxxx Xxxxxxx Xxxxxxxxx XX 00000 6.380%
36 000 Xxxxxxxxxx Xxxx Xxxxxxxxx Xxxxx Xxxxx XX 00000 6.380%
37 0000 Xxxx Xxxxxxxxxx Xxxxxxx Xxxxx Xxx Xxxxx XX 00000 5.852%
38 0000 Xxxxxxxx Xxxxxx Xxxxxxx XX 00000 6.032%
39.1 000 Xxxx Xxxxxx Xxxxxxxxx XX 00000
39.2 00 Xxxxxx Xxxxxx & 0000 Xxxxxxxxx Xxxxxxx Xxxxxxx Xxxxxxxxxx XX 00000
39.3 000 Xxxxxx Xxxxxx Xxxxxxxxx XX 00000
39 Various Various NH Various 6.257%
40 000 Xxxxx Xxxxxxx 00 Xxxxx Xxxx XX 00000 5.682%
41 7220, 7240, 7260, 7280 & 0000 Xxxx Xxxxx Xxxxx Xxx Xxxxx XX 00000 5.543%
42 0000 Xxxxxxxxx Xxxxxx Xxxx Xxxxxxxx Xxxxxxx XX 00000 5.701%
43 1279 (Kemah) & 1289 (Signature) XX 000 Xxxx Xxxxx XX 00000 6.199%
44 0000 Xxxxx Xxxxx Xxxxxxx Xxxxxx Xxxxx XX 00000 6.329%
45 0000 Xxxxxxxx Xxxxxx XX 00000 6.292%
46 000 Xxxxxx Xxxxx Xxxxx Xxx Xxxxx XX 00000 5.245%
47 12701-12735 Xxxxxxx Xxxx Xxxxxxx XX 00000 5.576%
48 0000 Xxxxx Xxxxxx Xxxxx Xxxxx XX 00000 5.703%
49 0000 Xxxxxxx Xxxxx Xxxxxxxxx Xxxxxxxxx XX 00000 6.064%
50 00000 Xxxxxxx Xxxx Xxxxxx XX 00000 5.846%
51 1535, 1545, 1555 & 0000 Xxxxx Xxxxxxx Xxxxxx Xxx Xxxxxxx XX 00000 5.724%
52 00 Xxxxxxx Xxxx Xxxxxx Xxxxx XX 00000 5.839%
53 0000 Xxx Xxxxx Xxxxxx XX 00000 5.984%
54 0000 Xxxxxxx Xxxxxxxxx Xx. Xxxxx XX 00000 6.383%
55.1 0000 Xxxx Xxxxxx Xxxx Xxxxxx XX 00000
55.2 0000 Xxxxxxxxxxx Xxxxxxxxx Xxxxxxxxxxx XX 00000
55 Various Various TX Various 5.710%
56 0000-0000 Xxxx Xxxxxx Xxxx Xxx Xxxxx XX 00000 6.005%
57 0000-0000 Xxxxxxx Xxxx Xxxxxxxxxxxxxxx XX 00000 5.393%
58 0000 Xxx Xxxxxxxx Xxxxxxxxx XX 00000 6.155%
59 0000 Xxxx Xxxxx Xxxx Xxxxxxx XX 00000 6.264%
60 0000 Xxxxxx Xxxxxx Xxxxxx XX 00000 5.587%
61 0000 Xxxxxxx Xxxxxxx Xxx Xxxxx XX 00000 6.016%
62 0000 Xxxx Xxxxxxxx Xxxx Xxxxx XX 00000 6.555%
63 0000 Xxxxx Xxxxx Xxxxxxxx XX 00000 5.697%
64 000 Xxxx Xxxxxxxxx Xxxxx Xxxxx XX 00000 5.688%
65 000 Xxxxxxxxxx Xxxxxxxxx Xxxxxxxxx XX 00000 6.398%
66 000 Xxxxxxxxx Xxxxxxxx Xxxxx Xxx'x Xxxxxx XX 00000 6.304%
67 21430, 21440, 21450 & 00000 Xxxxx Xxxxx Xxxxxxxxx Xxxxx Xxxxx XX 00000 5.873%
68 0000 Xxxx Xxxxxxxxx Xxxxxx Xxx Xxxxx XX 00000 5.950%
69 00000 00xx Xxxx Xxxxx Xxxxxxx XX 00000 5.720%
70 00 Xxxxx Xxxxx Xxxxx Xxxx XX 00000 6.263%
71 00000 Xxxxx Xxxxxxxxx Xxxxxxx Xxxxxxx Xxxxx XX 00000 5.907%
72 0000 Xxxxxxx Xxxxxx Xxxxxx XX 00000 5.220%
73 00 Xxxxxx Xxxxxx Xxxxxxxx XX 00000 6.260%
74 00 Xxx Xxxxx Xxxxxx Xx. Xxxxxxxxx XX 00000 6.342%
75.1 0000 Xxxxx Xxxxxx Xxxx Xxxxxxxxxx XX 00000
75.2 000-000 Xxxxx Xxxxx Xxxxxxxxxx XX 00000
75.3 000-000 Xxxxxx Xxxxx Xxxxxxxxxx XX 00000
75 Xxxxxxx Xxxxxxxxxx XX 00000 6.120%
76 0000 Xxxxx Xxxxxxxx Xxxxx Xxxxxxx Xxxxx XX 00000 5.893%
77 000 Xxxxx Xxx Xxxx Xxxx XX 00000 6.167%
78 00000 Xxxxxxx Xxxxxxxxx Xxxxxxxx XX 00000 6.007%
79 00 Xxxxxxx Xxxxxx Xxxxxx XX 00000 5.896%
80 0000 Xxxxx Xxxxxxx Xxxxxx Xxxxxxx XX 00000 6.167%
81 00000 Xxxx Xxx Xxxx Xxxxxxxxxx Xxxxx XX 00000 6.032%
82 0000-0000 Xxxx Xxxxxxx Xxxxxx Xxxxxx XX 00000 5.990%
83 000 Xxxxxxxxx Xxxxx Xxxxxxxxxx XX 00000 5.659%
84 0000 Xxxxxxx 00 Xxxxxxx XX 00000 6.161%
85 000 Xxxx Xxxxx Xxxxx Xxxx Xxxxxxxxxx XX 00000 6.316%
86 000 Xxxx Xxxxxx Xxxxxx Xxxxxxxxxx XX 00000 6.448%
87 0000 Xxxx Xxxxx Xxxxxx Xxxxxxxxx XX 00000 5.895%
88 000 Xxxx Xxxxx Xxxxx Xxxxx XX 00000 5.802%
89 000 Xxxxx Xxxxxxxxx Xxxxx Xxxxxxx XX 00000 6.437%
90 0000 Xxx Xxx Xxxx Xxxx Xxxxxx XX 00000 6.123%
91 0000 Xxxxxx Xxxxxx Xxxxxx XX 00000 6.007%
92 000 Xxx Xxxx Xxxxxxxxx Xxxxxxxxxx XX 00000 6.568%
93 0000 Xxxxxxxxxx Xxxx Xxxxxx XX 00000 6.446%
94 0000 Xxxx Xxxxxxxx Xxxx Xxx Xxxxx XX 00000 5.934%
95 0000 X.X. Xxxxxxx 00 Xxxxxxxxx XX 00000 6.267%
96 10524-10572 XxXxxxxx Avenue & 00000 Xxxx Xxxxxx Xxxxxx Xxxxx XX 00000 6.178%
Sequence Amortization Basis (2) Original Balance Cut-off Date Balance
-------- ---------------------- ---------------- --------------------
1 Actual/360 $115,021,987 $115,021,987
2 Actual/360 $115,000,000 $115,000,000
3 Actual/360 $110,000,000 $110,000,000
4 Actual/360 $101,500,000 $101,500,000
5 Actual/360 $100,000,000 $99,883,426
6 Actual/360 $96,000,000 $96,000,000
7 Actual/360 $94,000,000 $94,000,000
8 Actual/360 $90,000,000 $89,815,875
9 Actual/360 $80,000,000 $80,000,000
10 Actual/360 $71,025,000 $70,903,384
11 Actual/360 $68,500,000 $68,500,000
12 Actual/360 $68,100,000 $67,985,249
13 Actual/360 $52,500,000 $52,500,000
14 Actual/360 $40,200,000 $40,200,000
15 Actual/360 $33,900,000 $33,900,000
16 Actual/360 $31,635,531 $31,635,531
17.1 $2,312,000 $2,306,678
17.2 $2,304,000 $2,298,696
17.3 $2,304,000 $2,298,696
17.4 $2,224,000 $2,218,880
17.5 $1,580,000 $1,576,363
17.6 $1,580,000 $1,576,363
17.7 $1,580,000 $1,576,363
17.8 $1,560,000 $1,556,409
17.9 $1,560,000 $1,556,409
17.1 $1,448,000 $1,444,667
17.11 $1,448,000 $1,444,667
17.12 $1,448,000 $1,444,667
17.13 $1,440,000 $1,436,685
17.14 $1,440,000 $1,436,685
17.15 $1,440,000 $1,436,685
17.16 $1,440,000 $1,436,685
17.17 $1,440,000 $1,436,685
17.18 $1,440,000 $1,436,685
17.19 $1,440,000 $1,436,685
17 Actual/360 $31,428,000 $31,355,653
18 30/360 $25,250,000 $25,250,000
19 Actual/360 $21,000,000 $20,960,690
20 Actual/360 $20,917,000 $20,917,000
21 Actual/360 $20,000,000 $20,000,000
22 Actual/360 $19,754,950 $19,722,399
23 Actual/360 $19,500,000 $19,484,361
24 Actual/360 $19,369,780 $19,337,863
25 Actual/360 $18,688,203 $18,688,203
26 Actual/360 $18,631,926 $18,631,926
27 Actual/360 $17,490,919 $17,462,098
28 Actual/360 $17,374,191 $17,345,563
29 Actual/360 $17,263,258 $17,234,812
30 Actual/360 $16,250,000 $16,250,000
31 Actual/360 $16,116,794 $16,090,238
32 Actual/360 $8,840,000 $8,840,000
33 Actual/360 $6,160,000 $6,160,000
$15,000,000 $15,000,000
34 Actual/360 $14,700,000 $14,700,000
35 Actual/360 $14,438,450 $14,414,216
36 Actual/360 $14,341,855 $14,317,783
37 Actual/360 $13,705,000 $13,705,000
38 Actual/360 $12,500,000 $12,500,000
39.1 $4,455,212 $4,455,212
39.2 $4,326,233 $4,326,233
39.3 $3,613,555 $3,613,555
39 Actual/360 $12,395,000 $12,395,000
40 Actual/360 $10,750,000 $10,750,000
41 Actual/360 $9,850,000 $9,850,000
42 Actual/360 $9,240,000 $9,240,000
43 Actual/360 $9,240,000 $9,240,000
44 Actual/360 $9,184,166 $9,161,526
45 Actual/360 $9,000,000 $9,000,000
46 Actual/360 $8,550,000 $8,454,940
47 Actual/360 $8,443,840 $8,443,840
48 Actual/360 $7,700,000 $7,700,000
49 Actual/360 $7,661,246 $7,633,470
50 Actual/360 $7,500,000 $7,500,000
51 Actual/360 $7,500,000 $7,500,000
52 Actual/360 $7,500,000 $7,485,779
53 Actual/360 $7,250,000 $7,250,000
54 Actual/360 $7,090,000 $7,090,000
55.1 $6,453,568 $6,453,568
55.2 $569,432 $569,432
55 Actual/360 $7,023,000 $7,023,000
56 Actual/360 $7,000,000 $6,981,355
57 Actual/360 $6,650,000 $6,650,000
58 Actual/360 $6,500,000 $6,500,000
59 Actual/360 $6,166,000 $6,166,000
60 Actual/360 $6,150,000 $6,150,000
61 Actual/360 $6,050,000 $6,050,000
62 Actual/360 $5,950,000 $5,940,410
63 Actual/360 $5,680,000 $5,680,000
64 Actual/360 $5,500,000 $5,500,000
65 Actual/360 $5,390,000 $5,390,000
66 Actual/360 $5,250,000 $5,250,000
67 Actual/360 $5,100,000 $5,100,000
68 Actual/360 $5,000,000 $5,000,000
69 Actual/360 $4,775,000 $4,775,000
70 Actual/360 $4,750,000 $4,741,811
71 Actual/360 $4,700,000 $4,700,000
72 Actual/360 $4,600,000 $4,553,423
73 Actual/360 $4,491,995 $4,477,388
74 Actual/360 $4,400,000 $4,392,550
75.1 $2,875,248 $2,867,795
75.2 $771,408 $769,408
75.3 $736,344 $734,435
75 Actual/360 $4,383,000 $4,371,639
76 Actual/360 $4,100,000 $4,100,000
77 Actual/360 $4,020,000 $4,012,917
78 Actual/360 $4,000,000 $4,000,000
79 Actual/360 $3,850,000 $3,850,000
80 Actual/360 $3,800,000 $3,800,000
81 Actual/360 $3,700,000 $3,696,959
82 Actual/360 $3,608,600 $3,608,600
83 Actual/360 $3,347,225 $3,337,314
84 Actual/360 $2,984,000 $2,978,735
85 Actual/360 $2,927,041 $2,927,041
86 Actual/360 $2,700,000 $2,695,539
87 Actual/360 $2,550,000 $2,545,225
88 Actual/360 $2,500,000 $2,500,000
89 Actual/360 $2,500,000 $2,498,159
90 Actual/360 $2,415,000 $2,408,745
91 Actual/360 $2,200,000 $2,200,000
92 Actual/360 $2,065,000 $2,061,682
93 Actual/360 $2,065,000 $2,061,586
94 Actual/360 $1,864,000 $1,864,000
95 Actual/360 $1,850,000 $1,845,371
96 Actual/360 $1,454,551 $1,454,551
$1,964,746,808
Sequence Remaining Term To Stated Maturity (months) Stated Maturity Date Due Date Monthly Payment
-------- ------------------------------------------ -------------------- -------- ---------------
1 118 6/1/2016 1st $596,533
2 52 12/1/2010 1st $480,672
3 118 6/1/2016 1st $663,578
4 118 6/1/2016 1st $496,882
5 119 7/1/2016 1st $665,575
6 116 4/1/2016 1st $571,871
7 118 6/1/2016 1st $460,167
8 118 6/1/2016 1st $510,457
9 117 5/1/2016 1st $415,728
10 118 6/1/2016 1st $439,301
11 118 6/1/2016 1st $318,087
12 118 6/1/2016 1st $424,321
13 119 7/1/2016 1st $317,690
14 119 7/1/2016 1st $239,600
15 118 6/1/2016 1st $171,969
16 116 4/1/2016 1st $181,134
17.1
17.2
17.3
17.4
17.5
17.6
17.7
17.8
17.9
17.1
17.11
17.12
17.13
17.14
17.15
17.16
17.17
17.18
17.19
17 117 5/1/2016 1st $200,863
18 117 5/1/2016 1st $120,253
19 118 6/1/2016 1st $124,518
20 118 6/1/2016 1st $125,274
21 118 6/1/2016 1st $99,868
22 118 6/1/2016 1st $124,346
23 119 7/1/2016 1st $118,471
24 118 6/1/2016 1st $121,921
25 116 4/1/2016 1st $107,002
26 116 4/1/2016 1st $107,821
27 118 6/1/2016 1st $110,095
28 118 6/1/2016 1st $109,360
29 118 6/1/2016 1st $108,662
30 113 1/1/2016 1st $92,950
31 118 6/1/2016 1st $101,446
32 119 7/1/2016 1st $53,770
33 119 7/1/2016 1st $37,948
34 117 5/1/2016 1st $75,204
35 118 6/1/2016 1st $90,124
36 118 6/1/2016 1st $89,521
37 119 7/1/2016 1st $80,869
38 117 5/1/2016 1st $75,201
39.1
39.2
39.3
39 118 6/1/2016 1st $76,375
40 118 6/1/2016 1st $62,270
41 117 5/1/2016 1st $56,193
42 77 1/1/2013 1st $53,635
43 118 6/1/2016 1st $56,586
44 117 5/1/2016 1st $57,021
45 120 8/1/2016 1st $55,661
46 110 10/1/2015 1st $47,187
47 116 4/1/2016 1st $48,347
48 114 2/1/2016 1st $44,705
49 116 4/1/2016 1st $46,249
50 117 5/1/2016 1st $44,226
51 118 6/1/2016 1st $36,272
52 118 6/1/2016 1st $44,193
53 106 6/1/2015 1st $36,655
54 119 7/1/2016 1st $44,269
55.1
55.2
55 113 1/1/2016 1st $40,806
56 117 5/1/2016 1st $41,991
57 108 8/1/2015 1st $37,313
58 119 7/1/2016 1st $39,621
59 119 7/1/2016 1st $38,021
60 109 9/1/2015 1st $35,255
61 118 6/1/2016 1st $36,335
62 118 6/1/2016 1st $37,824
63 117 5/1/2016 1st $32,956
64 116 4/1/2016 1st $31,880
65 118 6/1/2016 1st $33,708
66 83 7/1/2013 1st $32,510
67 119 7/1/2016 1st $30,162
68 117 5/1/2016 1st $29,817
69 117 5/1/2016 1st $27,775
70 118 6/1/2016 1st $29,287
71 118 6/1/2016 1st $27,898
72 111 11/1/2015 1st $25,316
73 117 5/1/2016 1st $28,797
74 118 6/1/2016 1st $27,355
75.1
75.2
75.3
75 117 5/1/2016 1st $26,617
76 117 5/1/2016 1st $24,773
77 118 6/1/2016 1st $24,535
78 116 4/1/2016 1st $24,000
79 117 5/1/2016 1st $22,826
80 118 6/1/2016 1st $23,193
81 119 7/1/2016 1st $22,260
82 116 4/1/2016 1st $21,612
83 113 1/1/2016 1st $19,424
84 118 6/1/2016 1st $18,201
85 118 6/1/2016 1st $18,148
86 118 6/1/2016 1st $16,974
87 118 6/1/2016 1st $15,117
88 118 6/1/2016 1st $14,672
89 119 7/1/2016 1st $15,698
90 117 5/1/2016 1st $14,671
91 116 4/1/2016 1st $13,200
92 118 6/1/2016 1st $13,145
93 118 6/1/2016 1st $12,979
94 117 5/1/2016 1st $11,097
95 117 5/1/2016 1st $11,411
96 117 5/1/2016 1st $8,888
Sequence Administrative Fee Rate (3) Primary Servicing Fee Rate Master Servicing Fee Rate Ownership Interest
-------- --------------------------- -------------------------- ------------------------- ------------------
1 0.021% 0.010% 0.010% Fee
2 0.021% 0.010% 0.010% Fee
3 0.021% 0.010% 0.010% Fee
4 0.021% 0.010% 0.010% Fee
5 0.021% 0.010% 0.010% Fee
6 0.021% 0.010% 0.010% Fee
7 0.021% 0.010% 0.010% Fee
8 0.021% 0.010% 0.010% Fee
9 0.021% 0.010% 0.010% Fee
10 0.021% 0.010% 0.010% Fee
11 0.021% 0.010% 0.010% Fee/Leasehold
12 0.021% 0.010% 0.010% Fee
13 0.021% 0.010% 0.010% Fee
14 0.021% 0.010% 0.010% Fee
15 0.021% 0.010% 0.010% Fee
16 0.021% 0.010% 0.010% Fee
17.1 Fee
17.2 Fee
17.3 Fee
17.4 Fee
17.5 Fee
17.6 Fee
17.7 Fee
17.8 Fee
17.9 Fee
17.1 Fee
17.11 Fee
17.12 Fee
17.13 Fee
17.14 Fee
17.15 Fee
17.16 Fee
17.17 Fee
17.18 Fee
17.19 Fee
17 0.021% 0.010% 0.010% Fee
18 0.051% 0.040% 0.010% Fee
19 0.021% 0.010% 0.010% Fee
20 0.021% 0.010% 0.010% Fee
21 0.021% 0.010% 0.010% Fee
22 0.041% 0.030% 0.010% Fee
23 0.021% 0.010% 0.010% Fee
24 0.041% 0.030% 0.010% Fee
25 0.021% 0.010% 0.010% Fee
26 0.051% 0.040% 0.010% Fee
27 0.041% 0.030% 0.010% Leasehold
28 0.041% 0.030% 0.010% Fee
29 0.041% 0.030% 0.010% Fee
30 0.051% 0.040% 0.010% Fee
31 0.041% 0.030% 0.010% Fee
32 0.021% 0.010% 0.010% Fee
33 0.021% 0.010% 0.010% Fee
34 0.021% 0.010% 0.010% Fee
35 0.041% 0.030% 0.010% Leasehold
36 0.041% 0.030% 0.010% Leasehold
37 0.021% 0.010% 0.010% Fee
38 0.021% 0.010% 0.010% Fee
39.1 Fee
39.2 Fee
39.3 Fee
39 0.021% 0.010% 0.010% Fee
40 0.071% 0.060% 0.010% Fee
41 0.061% 0.050% 0.010% Fee
42 0.061% 0.050% 0.010% Fee
43 0.021% 0.010% 0.010% Fee
44 0.021% 0.010% 0.010% Leasehold
45 0.041% 0.030% 0.010% Fee
46 0.041% 0.030% 0.010% Fee
47 0.021% 0.010% 0.010% Fee
48 0.071% 0.060% 0.010% Fee
49 0.021% 0.010% 0.010% Fee
50 0.071% 0.060% 0.010% Fee
51 0.021% 0.010% 0.010% Fee
52 0.021% 0.010% 0.010% Fee
53 0.021% 0.010% 0.010% Fee
54 0.051% 0.040% 0.010% Fee
55.1 Fee
55.2 Fee
55 0.071% 0.060% 0.010% Fee
56 0.021% 0.010% 0.010% Fee
57 0.041% 0.030% 0.010% Fee
58 0.021% 0.010% 0.010% Fee
59 0.021% 0.010% 0.010% Fee
60 0.051% 0.040% 0.010% Fee
61 0.021% 0.010% 0.010% Fee
62 0.041% 0.030% 0.010% Fee
63 0.021% 0.010% 0.010% Fee
64 0.021% 0.010% 0.010% Fee
65 0.041% 0.030% 0.010% Fee
66 0.041% 0.030% 0.010% Fee
67 0.021% 0.010% 0.010% Fee
68 0.021% 0.010% 0.010% Fee
69 0.021% 0.010% 0.010% Fee
70 0.021% 0.010% 0.010% Fee
71 0.021% 0.010% 0.010% Fee
72 0.021% 0.010% 0.010% Fee
73 0.071% 0.060% 0.010% Leasehold
74 0.091% 0.080% 0.010% Fee
75.1 Fee
75.2 Fee
75.3 Fee
75 0.041% 0.030% 0.010% Fee
76 0.021% 0.010% 0.010% Fee
77 0.021% 0.010% 0.010% Fee
78 0.071% 0.060% 0.010% Fee
79 0.021% 0.010% 0.010% Fee
80 0.021% 0.010% 0.010% Fee
81 0.021% 0.010% 0.010% Fee
82 0.041% 0.030% 0.010% Fee
83 0.081% 0.070% 0.010% Fee
84 0.061% 0.050% 0.010% Fee
85 0.061% 0.050% 0.010% Fee
86 0.071% 0.060% 0.010% Fee
87 0.021% 0.010% 0.010% Fee
88 0.021% 0.010% 0.010% Fee
89 0.021% 0.010% 0.010% Fee
90 0.041% 0.030% 0.010% Fee
91 0.071% 0.060% 0.010% Fee
92 0.091% 0.080% 0.010% Fee
93 0.091% 0.080% 0.010% Fee
94 0.021% 0.010% 0.010% Fee
95 0.021% 0.010% 0.010% Fee
96 0.071% 0.060% 0.010% Fee
Original
Amortization
Sequence Cross-Collateralized Loans Months ARD Loan Grace Period Loan Group
-------- -------------------------- ------------ -------- ------------ ----------
1 No Xx 0
0 Xx Xx 0 0
0 Xx 360 Xx 0
0 Xx Xx 0 0
0 Xx 300 Xx 0
0 Xx 000 Xx 0
0 Xx No 5 1
8 Xx 000 Xx 0
0 Xx Xx 0
00 Xx 360 Xx 0
00 Xx Xx 0
00 Xx 360 Xx 0
00 Xx 000 Xx 0 0
00 Xx 360 No 5 1
15 No Xx 0 0
00 Xx 000 Xx 5 1
17.1 1
17.2 1
17.3 1
17.4 1
17.5 1
17.6 1
17.7 1
17.8 1
17.9 1
17.1 1
17.11 1
17.12 1
17.13 1
17.14 1
17.15 1
17.16 1
17.17 1
17.18 1
17.19 1
17 No 360 Xx 0
00 Xx Xx 00 0
00 Xx 360 Xx 0 0
00 Xx 000 Xx 0 0
00 Xx Xx 0 0
00 Xx 000 Xx 1
23 No 360 No 5 1
24 No 360 Xx 0
00 Xx 000 Xx 0 0
00 Xx 360 No 5 1
27 No 360 Xx 0
00 Xx 000 Xx 0
00 Xx 360 Xx 0
00 Xx 000 Xx 0 0
00 Xx 360 No 1
32 Yes - BACM 06-3 A 360 No 5 1
33 Yes - BACM 06-3 A 360 Xx 0 0
00 Xx Xx 0
00 Xx 360 Xx 0
00 Xx 000 Xx 0
00 Xx 360 No 5 1
38 No 360 Yes 5 1
39.1 1
39.2 1
39.3 1
39 No 360 No 5 1
40 No 360 Xx 0 0
00 Xx 000 Xx 0 0
00 Xx 360 Yes 5 1
43 No 360 Xx 0 0
00 Xx 000 Xx 0 0
00 Xx 360 No 5 1
46 No 360 Xx 0 0
00 Xx 000 Xx 0 0
00 Xx 360 Xx 0 0
00 Xx 000 Xx 0 0
00 Xx 360 Xx 0 0
00 Xx Xx 0 0
00 Xx 360 Xx 0 0
00 Xx Xxx 0 0
00 Xx 360 No 5 1
55.1 1
55.2 1
55 No 360 Xx 0 0
00 Xx 000 Xx 0 0
00 Xx 360 Xx 0 0
00 Xx 000 Xx 0 0
00 Xx 360 Xx 0 0
00 Xx 000 Xx 0 0
00 Xx 360 Xx 0 0
00 Xx 000 Xx 0 0
00 Xx 360 No 5 2
64 No 360 Xx 0 0
00 Xx 000 Xx 0 0
00 Xx 360 Yes 5 1
67 No 360 No 5 1
68 No 360 Xx 0 0
00 Xx 000 Xx 0 0
00 Xx 360 Xx 0 0
00 Xx 000 Xx 0 0
00 Xx 360 No 5 1
73 No 323 Xx 0 0
00 Xx 000 Xx 5 1
75.1 2
75.2 2
75.3 2
75 No 360 No 5 2
76 No 342 Xx 0 0
00 Xx 000 Xx 0 0
00 Xx 360 No 5 2
79 No 360 Xx 0 0
00 Xx 000 Xx 0 0
00 Xx 360 Xx 0 0
00 Xx 000 Xx 0 0
00 Xx 356 Xx 0 0
00 Xx 000 Xx 0 0
00 Xx 360 Yes 5 1
86 No 360 No 5 2
87 No 360 Xx 0 0
00 Xx 000 Xx 0 0
00 Xx 360 No 5 1
90 No 360 Xx 0 0
00 Xx 000 Xx 0 0
00 Xx 360 No 5 1
93 No 360 Xx 0 0
00 Xx 000 Xx 0 0
00 Xx 360 Xx 0 0
00 Xx 000 Xx 5 1
1) Rates are to full precision in the "BACM2006_3.xls" file located on the
computer diskette.
2) For Mortgage Loans which accrue interest on the basis of actual days
elapsed each calendar month and a 360-day year, the amortization term is
the term over which the Mortgage Loans would amortize if interest accrued
and was paid on the basis of a 360-day year consisting of twelve 30-day
months. The actual amortization would be longer.
3) Administrative Fee Rate includes the rates at which the master servicing
fee (and any sub-servicing fee) and trustee fee accrue.
SCHEDULE II
Sub-Servicing Agreements in Effect as of the Closing Date
1. Sub-Servicing Agreement, dated as of August 1, 2006 by and
between BANK OF AMERICA, NATIONAL ASSOCIATION, as Master Servicer, and XXXXXXXX
XXXXXXXX XXXXXX, X.X., as Sub-servicer.
2. Sub-Servicing Agreement, dated as of August 1, 2006 by and
between BANK OF AMERICA, NATIONAL ASSOCIATION, as Master Servicer, and MIDLAND
LOAN SERVICES, INC., as Sub-servicer.
3. Sub-Servicing Agreement, dated as of August 1, 2006 by and
between BANK OF AMERICA, NATIONAL ASSOCIATION., as Master Servicer, CAPSTONE
REALTY ADVISORS, LLC, COLLATERAL MORTGAGE CAPITAL, LLC, LAUREATE CAPITAL LLC,
CBRE MELODY OF TEXAS, LP and NORTHMARQ CAPITA L, INC., as Sub-Servicers.
SCHEDULE III
Schedule of Exceptions under Section 2.02(a)
None.
SCHEDULE IV
[RESERVED]
SCHEDULE V
------------------------------------------------------------------------------------------------------------------------------------
LoanNumber PropertyName LoanTransaction Cutoff Balance Amortization Type IOPeriod
------------------------------------------------------------------------------------------------------------------------------------
3400190 Xxxxx Building BACM 2006-3 115,021,987 Interest Only 120
59124 Saugus Colony BACM 2006-3 115,000,000 Interest Only 60
3401551 Herald Center BACM 2006-3 110,000,000 IO, Balloon 60
3219703 Xxxxxxxx Xxxxx Xxxx XXXX 0000-0 101,500,000 Xxxxxxxx Xxxx 000
00000 Xxxxxxxx Xxxxx XXXX 0000-0 96,000,000 IO, Balloon 60
3219702 Xxxxxxxx Xxxx XXXX 0000-0 94,000,000 Interest Only 120
3400144 One Xxxxxx Xxxxx XXXX 0000-0 80,000,000 Interest Only 120
59643 Xxxxxx Landing BACM 2006-3 68,500,000 Interest Only 120
59770 Fifth Third Center - Columbus, OH BACM 2006-3 52,500,000 IO, Balloon 48
3400163 Xxxxxxx Xxxxx XXXX 0000-0 40,200,000 IO, Balloon 60
3400274 Hedwig Village BACM 2006-3 33,900,000 Interest Only 120
59665 Fair Lakes Xxxxxxxxx XXXX 0000-0 31,635,531 IO, Balloon 60
59817 Xxxxxxxxx Xxxx Xxxxxxxxxxx XXXX 0000-0 25,250,000 Interest Only 120
3401265 Xxxxxxxx Xxxxxxx Xxxxxxxxxx XXXX 0000-0 20,917,000 IO, Balloon 60
3401474 South Bank BACM 2006-3 20,000,000 Interest Only 120
59663 Fairfax Retail BACM 2006-3 18,688,203 IO, Balloon 60
59728 Uptown Center BACM 2006-3 18,631,926 IO, Xxxxxxx 00
00000 Xxxxxxxx Xxxxx Apartments BACM 2006-3 16,250,000 IO, Balloon 24
3400009 2856-2860 Xxxxxxxx Xxxxxx XXXX 0000-0 14,700,000 Interest Only 120
59764 Centennial Xxxxx XXXX 0000-0 13,705,000 IO, Balloon 60
59625 Leamington Building BACM 2006-3 12,500,000 IO, Hyper Am 36
3400299 Xxx Xxxxxxxxx Xxxxxx Xxxxxxxxx XXXX 0000-0 12,395,000 IO, Balloon 36
3400289 Xxxxx Xxxx Xxxxxx XXXX 0000-0 10,750,000 IO, Balloon 24
59660 Xxxxxx Xxxxxxx Xxxxxx XXXX 0000-0 9,850,000 IO, Balloon 24
3400057 Signature Self Storage BACM 2006-3 9,240,000 IO, Balloon 36
59612 Baylor Medical Plaza BACM 2006-3 9,240,000 IO, Hyper Am 24
3400011 XX Xxxxxxx BACM 2006-3 8,840,000 IO, Balloon 36
59662 The Shops at Fair Lakes BACM 2006-3 8,443,840 IO, Balloon 60
17815 River Xxxxx XXXX 0000-0 7,700,000 IO, Balloon 36
3401439 Venice & Western Retail BACM 2006-3 7,500,000 Interest Only 120
3401225 Xxxxxx Xxxx Xxxxxxxxxx XXXX 0000-0 7,500,000 IO, Balloon 36
59761 DEA Warehouse/Tech Ops Building BACM 2006-3 7,250,000 Interest Only, Hyper Am 108
17402 Bank of America Building BACM 2006-3 7,090,000 IO, Balloon 36
59508 RCC Office Portfolio BACM 2006-3 7,023,000 IO, Balloon 36
13732 Milrand Retail BACM 2006-3 6,650,000 IO, Balloon 36
3400133 Xxxxxx Self Storage BACM 2006-3 6,500,000 IO, Balloon 60
3401203 Cedar Ridge Apartments BACM 2006-3 6,166,000 IO, Balloon 24
3402023 Xxxxxxx Xxxxxx & Xxxxxxx Xxxxxx XXXX 0000-0 6,160,000 IO, Balloon 36
59797 Raley's Xxxxxx XXXX 0000-0 6,150,000 IO, Balloon 36
00000 Xxxxxxx Xxxxxx BACM 2006-3 6,050,000 IO, Balloon 36
59630 Windsor Townhomes BACM 2006-3 5,680,000 IO, Balloon 60
59769 Xxxxx Xxxxx Xxxxxx Xxxxxx Xxx XXXX 0000-0 5,500,000 IO, Balloon 36
00000 X-Xxxxx Xxxxxxx BACM 2006-3 5,390,000 IO, Balloon 36
3400285 Business Exchange Building BACM 2006-3 5,250,000 IO, Hyper Am 24
59808 Yorba Canyon Center BACM 2006-3 5,100,000 IO, Balloon 36
59762 West Trop Storage BACM 2006-3 5,000,000 IO, Balloon 60
00000 Xxxxxx Xxxxxxx Xxxx XXXX 0000-0 4,775,000 IO, Balloon 60
59809 Henry's Farmers Xxxxxx XXXX 0000-0 4,700,000 IO, Balloon 36
59398 Lockers Self Storage BACM 2006-3 4,100,000 IO, Balloon 12
17595 Xxxxxxx Xxxxxxx Xxxxxxxxxx XXXX 0000-0 4,000,000 IO, Balloon 12
59707 00 Xxxxxxx Xxxxxx XXXX 0000-0 3,850,000 IO, Balloon 24
59798 Garland Firewheel BACM 2006-3 3,800,000 IO, Balloon 12
00000 Xxxxxxx Xxxxxx BACM 2006-3 3,608,600 IO, Balloon 24
59784 Xxxxxxxxx xx Xxxxx Xxxxx XXXX 0000-0 2,927,041 IO, Hyper Am 36
59791 Xxxxx Xxxxx Xxxxxx Xxxxxxxx XXX XXXX 0000-0 2,500,000 IO, Balloon 36
17596 Queensdale Apartments BACM 2006-3 2,200,000 IO, Balloon 12
59765 Flamingo Xxxxxxxx XXXX 0000-0 1,864,000 IO, Balloon 24
00000 XxXxxxxx Xxxxx BACM 2006-3 1,454,551 IO, Balloon 36
-------------------------------------------------------------------------------
LoanNumber Loan Group % of Loan Group % of Pool
-------------------------------------------------------------------------------
3400190 1 6.6% 5.9%
59124 2 52.5% 5.9%
3401551 1 6.3% 5.6%
3219703 1 5.8% 5.2%
59799 1 5.5% 4.9%
3219702 1 5.4% 4.8%
3400144 1 4.6% 4.1%
59643 1 3.9% 3.5%
59770 1 3.0% 2.7%
3400163 1 2.3% 2.0%
3400274 1 1.9% 1.7%
59665 1 1.8% 1.6%
59817 1 1.4% 1.3%
3401265 2 9.5% 1.1%
3401474 1 1.1% 1.0%
59663 1 1.1% 1.0%
59728 1 1.1% 0.9%
59512 2 7.4% 0.8%
3400009 1 0.8% 0.7%
59764 1 0.8% 0.7%
59625 1 0.7% 0.6%
3400299 1 0.7% 0.6%
3400289 1 0.6% 0.5%
59660 1 0.6% 0.5%
3400057 1 0.5% 0.5%
59612 1 0.5% 0.5%
3400011 1 0.5% 0.4%
59662 1 0.5% 0.4%
17815 2 3.5% 0.4%
3401439 1 0.4% 0.4%
3401225 2 3.4% 0.4%
59761 1 0.4% 0.4%
17402 1 0.4% 0.4%
59508 1 0.4% 0.4%
13732 1 0.4% 0.3%
3400133 1 0.4% 0.3%
3401203 2 2.8% 0.3%
3402023 1 0.4% 0.3%
59797 1 0.4% 0.3%
59800 1 0.3% 0.3%
59630 2 2.6% 0.3%
59769 1 0.3% 0.3%
18227 1 0.3% 0.3%
3400285 1 0.3% 0.3%
59808 1 0.3% 0.3%
59762 1 0.3% 0.3%
59815 2 2.2% 0.2%
59809 1 0.3% 0.2%
59398 1 0.2% 0.2%
17595 2 1.8% 0.2%
59707 2 1.8% 0.2%
59798 1 0.2% 0.2%
17391 1 0.2% 0.2%
59784 1 0.2% 0.1%
59791 1 0.1% 0.1%
17596 2 1.0% 0.1%
59765 1 0.1% 0.1%
59802 1 0.1% 0.1%
SCHEDULE VI
LoanNumber PropertyName LoanTransaction Cutoff Balance Existing Additional Debt
---------- ------------ --------------- -------------- ------------------------
3401226 One Stamford Forum BACM 2006-3 99,883,426 Yes
59458 FBI Xxxxxxxx XX Xxxxxxxx XXXX 0000-0 89,815,875 Yes
3401265 Xxxxxxxx Xxxxxxx Xxxxxxxxxx XXXX 0000-0 20,917,000 Yes
59124 Xxxxxx Xxxxxx XXXX 0000-0 115,000,000 No
3401551 Herald Center BACM 2006-3 110,000,000 No
3219703 Xxxxxxxx Xxxxx Xxxx XXXX 0000-0 101,500,000 No
3219702 Xxxxxxxx Xxxx XXXX 0000-0 94,000,000 No
3400163 Xxxxxxx Xxxxx XXXX 0000-0 40,200,000 No
59665 Fair Lakes Xxxxxxxxx XXXX 0000-0 31,635,531 No
59817 Xxxxxxxxx Xxxx Xxxxxxxxxxx XXXX 0000-0 25,250,000 No
3401474 South Bank BACM 2006-3 20,000,000 No
00000 Xxxxxxx Retail BACM 2006-3 18,688,203 No
59512 Xxxxxxxx Xxxxx Xxxxxxxxxx XXXX 0000-0 16,250,000 No
3400299 Xxx Xxxxxxxxx Xxxxxx Xxxxxxxxx XXXX 0000-0 12,395,000 No
59662 The Shops at Fair Lakes BACM 2006-3 8,443,840 No
59769 Xxxxx Xxxxx Xxxxxx Xxxxxx Xxx XXXX 0000-0 5,500,000 No
00000 Xxxxxxx Xxxxxx BACM 2006-3 3,608,600 No
16992 Sandpiper Apartments BACM 2006-3 3,337,314 No
59791 Xxxxx Xxxxx Xxxxxx Xxxxxxxx XXX XXXX 0000-0 2,500,000 No
LoanNumber Existing Additional Debt Amount Existing Additional Debt Description
---------- ------------------------------- ------------------------------------
3401226 33,960,365 B-Note
59458 30,000,000 Mezzanine
3401265 5,339,402 Subordinate Unsecured
59124 -
3401551
3219703 -
3219702 -
3400163 -
59665 -
59817 -
3401474
59663 -
59512 -
3400299 -
59662 -
59769 -
17391 -
16992 -
59791 -
LoanNumber Future Debt Permitted? Future Debt Amount Permitted
---------- ---------------------- ----------------------------
3401226 No
59458 Yes Upon existing Mezz loan being paid off: LTV <= 75%, DSCR >= 1.05x
3401265 No
59124 Yes LTV <= 70%, DSCR >= 1.15x
3401551 Yes LTV <= 75%, DSCR >= 1.25x
3219703 Yes LTV <= 80%, DSCR >= 1.25x
3219702 Yes LTV <= 80%, DSCR >= 1.25x
3400163 Yes After 18 months from closing: LTV<=80%, DSCR>=1.15x
59665 Yes LTV <= 80%, DSCR >= 1.15x
59817 Yes After April 1, 2008: LTV <= 75%, DSCR >= 1.20x
3401474 Yes LTV <= 85%, DSCR >= 1.10x
59663 Yes LTV <= 80%, DSCR >= 1.15x
59512 Yes After two years from closing: LTV <= 90%, DSCR >= 1.20x
3400299 Yes LTV =< 90%, DSCR=>1.05
59662 Yes LTV <= 80%, DSCR >= 1.15x
59769 Yes LTV <= 55%, DSCR >= 1.50x
17391 Yes
16992 Yes LTV <= 80%, DSCR >= 1.20x
59791 Yes LTV <= 60%, DSCR >= 1.50x
LoanNumber Future Debt Description Loan Group % of Loan Group % of Pool
---------- ----------------------- ---------- --------------- ---------
3401226 1 5.7% 5.1%
00000 Xxxxxxxxx 1 5.1% 4.6%
3401265 2 9.5% 1.1%
00000 Xxxxxxxxx 2 52.5% 5.9%
3401551 Mezzanine 1 6.3% 5.6%
3219703 Mezzanine 1 5.8% 5.2%
3219702 Mezzanine 1 5.4% 4.8%
3400163 Mezzanine 1 2.3% 2.0%
59665 Mezzanine 1 1.8% 1.6%
59817 Mezzanine 1 1.4% 1.3%
3401474 Mezzanine 1 1.1% 1.0%
59663 Mezzanine 1 1.1% 1.0%
59512 Mezzanine 2 7.4% 0.8%
3400299 Mezzanine 1 0.7% 0.6%
59662 Mezzanine 1 0.5% 0.4%
59769 Mezzanine 1 0.3% 0.3%
17391 Short term unsecured loans from affiliates of the borrower 1 0.2% 0.2%
16992 Subordinate Secured 2 1.5% 0.2%
59791 Mezzanine 1 0.1% 0.1%
SCHEDULE VII
One Stamford Forum Controlling Holder
Banc of America Structured Notes, Inc., 000 Xxxxx Xxxxx Xxxxxx, XX0-000-00-00,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Xxxxxxx Xxxxx, telecopy number:
(000) 000-0000 (with copies to Xxxx Xxxxxxx, Esq., Assistant General Counsel,
Bank of America Corporation, Bank of America Corporate Center, 000 Xxxxx Xxxxx
Xxxxxx (00xx Xxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 28255), telecopy number: (704)
409-0267, with copy to: Xxxxx X. XxXxxx, Esq., Cadwalader, Xxxxxxxxxx & Xxxx
LLP, 000 Xxxx Xxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
SCHEDULE VIII
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered shall address, at a minimum,
the criteria identified below as "Relevant Servicing Criteria", as such criteria
may be expanded, limited or otherwise updated by the Commission or its staff
(including, without limitation, not requiring delivery of certain of the items
set forth on this schedule based on interpretive guidance relating to Item 1122
of Regulation AB provided by the Commission or its staff:
---------------------------------------------------------------------------------------------------------------- -------------------
Applicable
Relevant Servicing Criteria Party(ies)
---------------------------------------------------------------------------------------------------------------- -------------------
Reference Criteria
-------------------- ------------------------------------------------------------------------------------------- -------------------
General Servicing Considerations
-------------------- ------------------------------------------------------------------------------------------- -------------------
Policies and procedures are instituted to monitor any performance or other triggers and Trustee
events of default in accordance with the transaction agreements. Master Servicer
Special Servicer
1122(d)(1)(i) Primary Servicer
-------------------- ------------------------------------------------------------------------------------------- -------------------
If any material servicing activities are outsourced to third parties, policies and Trustee
procedures are instituted to monitor the third party's performance and compliance with Master Servicer
such servicing activities. Special Servicer
1122(d)(1)(ii) Primary Servicer
-------------------- ------------------------------------------------------------------------------------------- -------------------
Any requirements in the transaction agreements to maintain a back-up servicer for the N/A
1122(d)(1)(iii) mortgage loans are maintained.
-------------------- ------------------------------------------------------------------------------------------- -------------------
A fidelity bond and errors and omissions policy is in effect on the party participating Trustee
in the servicing function throughout the reporting period in the amount of coverage Master Servicer
required by and otherwise in accordance with the terms of the transaction agreements. Special Servicer
1122(d)(1)(iv) Primary Servicer
-------------------- ------------------------------------------------------------------------------------------- -------------------
Cash Collection and Administration
-------------------- ------------------------------------------------------------------------------------------- -------------------
Payments on mortgage loans are deposited into the appropriate custodial bank accounts and Trustee
related bank clearing accounts no more than two business days following receipt, or such Master Servicer
other number of days specified in the transaction agreements. Special Servicer
1122(d)(2)(i) Primary Servicer
-------------------- ------------------------------------------------------------------------------------------- -------------------
Disbursements made via wire transfer on behalf of an obligor or to an investor are made Trustee
1122(d)(2)(ii) only by authorized personnel.
-------------------- ------------------------------------------------------------------------------------------- -------------------
Advances of funds or guarantees regarding collections, cash flows or distributions, and Master Servicer
any interest or other fees charged for such advances, are made, reviewed and approved as Special Servicer
1122(d)(2)(iii) specified in the transaction agreements. Trustee
-------------------- ------------------------------------------------------------------------------------------- -------------------
The related accounts for the transaction, such as cash reserve accounts or accounts Trustee
established as a form of overcollateralization, are separately maintained (e.g., with Master Servicer
respect to commingling of cash) as set forth in the transaction agreements. Special Servicer
1122(d)(2)(iv) Primary Servicer
-------------------- ------------------------------------------------------------------------------------------- -------------------
Each custodial account is maintained at a federally insured depository institution as set Trustee
forth in the transaction agreements. For purposes of this criterion, "federally insured Master Servicer
depository institution" with respect to a foreign financial institution means a foreign Special Servicer
financial institution that meets the requirements of Rule 13k-1(b)(1) of the Securities Primary Servicer
1122(d)(2)(v) Exchange Act.
-------------------- ------------------------------------------------------------------------------------------- -------------------
Unissued checks are safeguarded so as to prevent unauthorized access. Master Servicer
Special Servicer
Trustee
1122(d)(2)(vi) Primary Servicer
-------------------- ------------------------------------------------------------------------------------------- -------------------
Reconciliations are prepared on a monthly basis for all asset-backed securities related
bank accounts, including custodial accounts and related bank clearing accounts. These Trustee
reconciliations are (A) mathematically accurate; (B) prepared within 30 calendar days Master Servicer
after the bank statement cutoff date, or such other number of days specified in the Special Servicer
transaction agreements; (C) reviewed and approved by someone other than the person who Primary Servicer
prepared the reconciliation; and (D) contain explanations for reconciling items. These
reconciling items are resolved within 90 calendar days of their original identification,
1122(d)(2)(vii) or such other number of days specified in the transaction agreements.
-------------------- ------------------------------------------------------------------------------------------- -------------------
Investor Remittances and Reporting
-------------------- ------------------------------------------------------------------------------------------- -------------------
Reports to investors, including those to be filed with the Commission, are maintained in Trustee
accordance with the transaction agreements and applicable Commission requirements.
Specifically, such reports (A) are prepared in accordance with timeframes and other terms
set forth in the transaction agreements; (B) provide information calculated in accordance
with the terms specified in the transaction agreements; (C) are filed with the Commission
as required by its rules and regulations; and (D) agree with investors' or the trustee's
records as to the total unpaid principal balance and number of mortgage loans serviced by
1122(d)(3)(i) the Servicer.
-------------------- ------------------------------------------------------------------------------------------- -------------------
Amounts due to investors are allocated and remitted in accordance with timeframes, Trustee
1122(d)(3)(ii) distribution priority and other terms set forth in the transaction agreements.
-------------------- ------------------------------------------------------------------------------------------- -------------------
Disbursements made to an investor are posted within two business days to the Servicer's Trustee
1122(d)(3)(iii) investor records, or such other number of days specified in the transaction agreements.
-------------------- ------------------------------------------------------------------------------------------- -------------------
Amounts remitted to investors per the investor reports agree with cancelled checks, or Trustee
1122(d)(3)(iv) other form of payment, or custodial bank statements.
-------------------- ------------------------------------------------------------------------------------------- -------------------
Pool Asset Administration
-------------------- ------------------------------------------------------------------------------------------- -------------------
1122(d)(4)(i) Collateral or security on mortgage loans is maintained as required by the transaction Trustee
agreements or related mortgage loan documents. Master Servicer
Special Servicer
Primary Servicer
-------------------- ------------------------------------------------------------------------------------------- -------------------
Mortgage loan and related documents are safeguarded as required by the transaction Trustee
1122(d)(4)(ii) agreements.
-------------------- ------------------------------------------------------------------------------------------- -------------------
Any additions, removals or substitutions to the asset pool are made, reviewed and Trustee
approved in accordance with any conditions or requirements in the transaction agreements. Master Servicer
Special Servicer
Primary Servicer
1122(d)(4)(iii)
-------------------- ------------------------------------------------------------------------------------------- -------------------
Payments on mortgage loans, including any payoffs, made in accordance with the related Master Servicer
mortgage loan documents are posted to the Servicer's obligor records maintained no more Primary Servicer
than two business days after receipt, or such other number of days specified in the
transaction agreements, and allocated to principal, interest or other items (e.g.,
1122(d)(4)(iv) escrow) in accordance with the related mortgage loan documents.
-------------------- ------------------------------------------------------------------------------------------- -------------------
The Servicer's records regarding the mortgage loans agree with the Servicer's records Master Servicer
with respect to an obligor's unpaid principal balance. Primary Servicer
1122(d)(4)(v)
-------------------- ------------------------------------------------------------------------------------------- -------------------
Changes with respect to the terms or status of an obligor's mortgage loans (e.g., loan Master Servicer
modifications or re-agings) are made, reviewed and approved by authorized personnel in Special Servicer
accordance with the transaction agreements and related pool asset documents. Primary Servicer
1122(d)(4)(vi)
-------------------- ------------------------------------------------------------------------------------------- -------------------
Loss mitigation or recovery actions (e.g., forbearance plans, modifications and deeds in Master Servicer
lieu of foreclosure, foreclosures and repossessions, as applicable) are initiated, Special Servicer
conducted and concluded in accordance with the timeframes or other requirements
1122(d)(4)(vii) established by the transaction agreements.
-------------------- ------------------------------------------------------------------------------------------- -------------------
Records documenting collection efforts are maintained during the period a mortgage loan Master Servicer
is delinquent in accordance with the transaction agreements. Such records are maintained Special Servicer
on at least a monthly basis, or such other period specified in the transaction Primary Servicer
agreements, and describe the entity's activities in monitoring delinquent mortgage loans
including, for example, phone calls, letters and payment rescheduling plans in cases
1122(d)(4)(viii) where delinquency is deemed temporary (e.g., illness or unemployment).
-------------------- ------------------------------------------------------------------------------------------- -------------------
Adjustments to interest rates or rates of return for mortgage loans with variable rates Master Servicer
1122(d)(4)(ix) are computed based on the related mortgage loan documents. Primary Servicer
-------------------- ------------------------------------------------------------------------------------------- -------------------
Regarding any funds held in trust for an obligor (such as escrow accounts): (A) such Master Servicer
funds are analyzed, in accordance with the obligor's mortgage loan documents, on at least Primary Servicer
an annual basis, or such other period specified in the transaction agreements; (B)
interest on such funds is paid, or credited, to obligors in accordance with applicable
mortgage loan documents and state laws; and (C) such funds are returned to the obligor
within 30 calendar days of full repayment of the related mortgage loans, or such other
1122(d)(4)(x) number of days specified in the transaction agreements.
-------------------- ------------------------------------------------------------------------------------------- -------------------
Payments made on behalf of an obligor (such as tax or insurance payments) are made on or Master Servicer
before the related penalty or expiration dates, as indicated on the appropriate bills or Primary Servicer
notices for such payments, provided that such support has been received by the servicer
at least 30 calendar days prior to these dates, or such other number of days specified in
1122(d)(4)(xi) the transaction agreements.
-------------------- ------------------------------------------------------------------------------------------- -------------------
Any late payment penalties in connection with any payment to be made on behalf of an Master Servicer
obligor are paid from the servicer's funds and not charged to the obligor, unless the Primary Servicer
1122(d)(4)(xii) late payment was due to the obligor's error or omission.
-------------------- ------------------------------------------------------------------------------------------- -------------------
Disbursements made on behalf of an obligor are posted within two business days to the Master Servicer
obligor's records maintained by the servicer, or such other number of days specified in Primary Servicer
1122(d)(4)(xiii) the transaction agreements.
-------------------- ------------------------------------------------------------------------------------------- -------------------
Delinquencies, charge-offs and uncollectible accounts are recognized and recorded in Master Servicer
1122(d)(4)(xiv) accordance with the transaction agreements. Primary Servicer
-------------------- ------------------------------------------------------------------------------------------- -------------------
Any external enhancement or other support, identified in Item 1114(a)(1) through (3) or N/A
1122(d)(4)(xv) Item 1115 of Regulation AB, is maintained as set forth in the transaction agreements.
-------------------- ------------------------------------------------------------------------------------------- -------------------
SCHEDULE IX
Additional Form 10-D Disclosure
The parties identified in the "Party Responsible" column are obligated pursuant
to Section 11.4 of the Pooling and Servicing Agreement to disclose to the
Depositor and the Trustee any information described in the corresponding Form
10-D Item described in the "Item on Form 10-D" column to the extent such party
has actual knowledge (and in the case of financial statements required to be
provided in connection with Item 6 below, possession) of such information (other
than information as to itself).
------------------------------------------------------------------- ----------------------------------------------------------------
Item on Form 10-D Party Responsible
------------------------------------------------------------------- ----------------------------------------------------------------
Item 1A: Distribution and Pool Performance Information: o Master Servicer
o Item 1121(a)(13) of Regulation AB o Trustee
------------------------------------------------------------------- ----------------------------------------------------------------
Item 1B: Distribution and Pool Performance Information: o Trustee
o Item 1121 (a)(14) of Regulation AB o Depositor
------------------------------------------------------------------- ----------------------------------------------------------------
Item 2: Legal Proceedings: o Master Servicer (as to itself)
o Item 1117 of Regulation AB (to the extent material to o Special Servicer (as to itself)
Certificateholders) o Trustee (as to itself)
o Depositor (as to itself)
o Primary Servicer (as to itself)
o Any other Reporting Servicer (as to itself)
o Trustee/Master Servicer/Depositor/Special Servicer as to the
Trust in the case of the Master Servicer and Special
Servicer, to be reported by the party controlling such
litigation pursuant to Section 3.32.
o Each Seller as sponsor (as defined in Regulation AB)
o Originators under Item 1110 of Regulation AB
o Party under Item 1100(d)(1) of Regulation AB
------------------------------------------------------------------- ----------------------------------------------------------------
Item 3: Sale of Securities and Use of Proceeds o Depositor
------------------------------------------------------------------- ----------------------------------------------------------------
Item 4: Defaults Upon Senior Securities o Trustee
------------------------------------------------------------------- ----------------------------------------------------------------
Item 5: Submission of Matters to a Vote of Security Holders o Trustee
------------------------------------------------------------------- ----------------------------------------------------------------
Item 6: Significant Obligors of Pool Assets o Depositor
o Sponsor
o Mortgage Loan Seller
o Master Servicer
o Primary Servicer (as to loans serviced by it)
------------------------------------------------------------------- ----------------------------------------------------------------
Item 7: Significant Enhancement Provider Information o Depositor
------------------------------------------------------------------- ----------------------------------------------------------------
Item 8: Other Information (information required to be disclosed o Trustee
on Form 8-K that was not properly disclosed) o Any other party responsible for disclosure items on Form 8-K
------------------------------------------------------------------- ----------------------------------------------------------------
Item 9: Exhibits o Depositor
o Master Servicer
o Trustee
o Primary Servicer
------------------------------------------------------------------- ----------------------------------------------------------------
SCHEDULE X
Additional Form 10-K Disclosure
The parties identified in the "Party Responsible" column are obligated pursuant
to Section 11.5 of the Pooling and Servicing Agreement to disclose to the
Depositor and the Trustee any information described in the corresponding Form
10-K Item described in the "Item on Form 10-K" column to the extent such party
has actual knowledge (and in the case of financial statements required to be
provided in connection with 1112(b) below, possession) of such information
(other than information as to itself).
------------------------------------------------------------------- ----------------------------------------------------------------
Item on Form 10-K Party Responsible
------------------------------------------------------------------- ----------------------------------------------------------------
Item 1B: Unresolved Staff Comments o Depositor
------------------------------------------------------------------- ----------------------------------------------------------------
Item 9B: Other Information (information required to be disclosed o Trustee
on Form 8-K that was not properly disclosed) o Any other party responsible for disclosure items on Form 8-K
------------------------------------------------------------------- ----------------------------------------------------------------
Item 15: Exhibits, Financial Statement Schedules o Trustee
o Depositor
------------------------------------------------------------------- ----------------------------------------------------------------
Additional Item: o Master Servicer (as to itself)
o Special Servicer (as to itself)
Disclosure per Item 1117 of Regulation AB (to the extent material o Trustee (as to itself)
to Certificateholders) o Depositor (as to itself)
o Primary Servicer (as to itself)
o Any other Reporting Servicer (as to itself)
o Trustee/Master Servicer/Depositor/Special Servicer as to the
Trust in the case of the Master Servicer and Special
Servicer, to be reported by the party controlling such
litigation pursuant to Section 3.32.
o Each Seller as sponsor (as defined in Regulation AB)
o Originators under Item 1110 of Regulation AB
o Party under Item 1100(d)(1) of Regulation AB
------------------------------------------------------------------- ----------------------------------------------------------------
Additional Item: o Master Servicer (as to itself)
Disclosure per Item 1119 of Regulation AB o Special Servicer (as to itself) (to the extent material to
Certificateholders and only as to affiliations under
1119(a))
o Trustee (as to itself)
o Depositor (as to itself)
o Primary Servicer (as to itself)
o Trustee/Master Servicer/Depositor/Special Servicer as to the
Trust
o Each Seller as sponsors (as defined in Regulation AB)
o Originators under Item 1110 of Regulation AB
o Party under Item 1100(d)(1) of Regulation AB
------------------------------------------------------------------- ----------------------------------------------------------------
Additional Item: o Depositor
Disclosure per Item 1112(b) of Regulation AB o Each Seller as sponsor (as defined in Regulation AB)
o Master Servicer
------------------------------------------------------------------- ----------------------------------------------------------------
Additional Item: o Depositor
Disclosure per Items 1114(b)(2) and 1115(b) of Regulation AB o Master Servicer
------------------------------------------------------------------- ----------------------------------------------------------------
SCHEDULE XI
Form 8-K Disclosure Information
The parties identified in the "Party Responsible" column are obligated pursuant
to Section 11.7 of the Pooling and Servicing Agreement to report to the
Depositor and the Trustee the occurrence of any event described in the
corresponding Form 8-K Item described in the "Item on Form 8-K" column to the
extent such party has actual knowledge of such information (other than
information as to itself).
------------------------------------------------------------------- ----------------------------------------------------------------
Item on Form 8-K Party Responsible
------------------------------------------------------------------- ----------------------------------------------------------------
Item 1.01- Entry into a Material Definitive Agreement All parties (only as to the agreements such entity is a
party to or entered into on behalf of the Trust)
------------------------------------------------------------------- ----------------------------------------------------------------
Item 1.02- Termination of a Material Definitive Agreement All parties (only as to the agreements such entity is a
party to or entered into on behalf of the Trust)
------------------------------------------------------------------- ----------------------------------------------------------------
Item 1.03- Bankruptcy or Receivership o Depositor
------------------------------------------------------------------- ----------------------------------------------------------------
Item 2.04- Triggering Events that Accelerate or Increase a Direct o Depositor
Financial Obligation or an Obligation under an Off-Balance Sheet
Arrangement
------------------------------------------------------------------- ----------------------------------------------------------------
Item 3.03- Material Modification to Rights of Security Holders o Trustee
------------------------------------------------------------------- ----------------------------------------------------------------
Item 5.03- Amendments of Articles of Incorporation or Bylaws; o Depositor
Change of Fiscal Year
------------------------------------------------------------------- ----------------------------------------------------------------
Item 6.01- ABS Informational and Computational Material o Depositor
------------------------------------------------------------------- ----------------------------------------------------------------
Item 6.02- Change of Servicer or Trustee o Master Servicer
o Special Servicer (as to itself or a servicer retained
by it)
o Primary Servicer
o Trustee
o Depositor
------------------------------------------------------------------- ----------------------------------------------------------------
Item 6.03- Change in Credit Enhancement or External Support o Depositor
o Trustee
------------------------------------------------------------------- ----------------------------------------------------------------
Item 6.04- Failure to Make a Required Distribution o Trustee
------------------------------------------------------------------- ----------------------------------------------------------------
Item 6.05- Securities Act Updating Disclosure o Depositor
------------------------------------------------------------------- ----------------------------------------------------------------
Item 7.01- Regulation FD Disclosure o Depositor
------------------------------------------------------------------- ----------------------------------------------------------------
Item 8.01 o Depositor
------------------------------------------------------------------- ----------------------------------------------------------------
Item 9.01 o Depositor
o Master Servicer
o Primary Servicer
------------------------------------------------------------------- ----------------------------------------------------------------
SCHEDULE XII
FORM OF ADDITIONAL DISCLOSURE NOTIFICATION
**SEND VIA FAX TO (000) 000-0000 AND VIA OVERNIGHT MAIL
TO XXXXX FARGO AND BANK OF AMERICA
AT THE ADDRESSES IMMEDIATELY BELOW**
Xxxxx Fargo Bank, X.X.
Xxxxx Fargo Center
Sixth and Marquette
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attn: Corporate (CMBS) Securities, Re: Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 0000-0
Xxxx xx Xxxxxxx Commercial Mortgage Inc.
000 Xxxxx Xxxxx Xxxxxx, XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
RE: **Additional Form [10-D][10-K][8-K] Disclosure** Required
Ladies and Gentlemen:
In accordance with Section [ ] of the pooling and servicing agreement,
dated as of August 1, 2006 (the "Pooling and Servicing Agreement"), by and among
Banc of America Commercial Mortgage Inc. (the "Company"), as depositor, Bank of
America, National Association, as master servicer, LNR Partners, Inc., as
special servicer, and Xxxxx Fargo Bank, N.A., as trustee and REMIC
administrator. The undersigned, as [ ], hereby notifies you that certain events
have come to our attention that [will] [may] need to be disclosed on Form
[10-D][10-K][8-K].
Description of Additional Form [10-D][10-K][8-K] Disclosure:
List of any Attachments hereto to be included in the Additional Form
[10-D][10-K][8-K] Disclosure:
Any inquiries related to this notification should be directed to [ ], phone
number: [ ]; email address: [ ].
[NAME OF PARTY],
as [role]
By:
------------------------------
Name:
Title:
cc: Depositor
SCHEDULE XIII
AMORTIZATION SCHEDULE OF THE
ONE STAMFORD FORUM NOTE B
Period Date Ending Balance ($) Principal ($)
0 7/1/2006 34,000,000.00 --
1 8/1/2006 33,960,364.67 39,635.33
2 9/1/2006 33,920,509.07 39,855.60
3 10/1/2006 33,874,350.77 46,158.30
4 11/1/2006 33,834,017.13 40,333.64
5 12/1/2006 33,787,393.65 46,623.48
6 1/1/2007 33,746,576.74 40,816.91
7 2/1/2007 33,705,532.99 41,043.75
8 3/1/2007 33,646,133.17 59,399.82
9 4/1/2007 33,604,531.19 41,601.98
10 5/1/2007 33,556,673.45 47,857.74
11 6/1/2007 33,514,574.28 42,099.17
12 7/1/2007 33,466,232.73 48,341.55
13 8/1/2007 33,423,630.93 42,601.80
14 9/1/2007 33,380,792.37 42,838.56
15 10/1/2007 33,331,731.29 49,061.08
16 11/1/2007 33,288,381.99 43,349.30
17 12/1/2007 33,238,823.90 49,558.09
18 1/1/2008 33,194,958.25 43,865.65
19 2/1/2008 33,150,848.81 44,109.44
20 3/1/2008 33,094,607.81 56,241.00
21 4/1/2008 33,049,940.67 44,667.14
22 5/1/2008 32,999,100.16 50,840.51
23 6/1/2008 32,953,902.22 45,197.94
24 7/1/2008 32,902,545.18 51,357.04
25 8/1/2008 32,856,810.63 45,734.55
26 9/1/2008 32,810,821.90 45,988.73
27 10/1/2008 32,758,695.33 52,126.57
28 11/1/2008 32,712,161.31 46,534.02
29 12/1/2008 32,659,504.11 52,657.20
30 1/1/2009 32,612,418.83 47,085.28
31 2/1/2009 32,565,071.87 47,346.96
32 3/1/2009 32,499,947.19 65,124.68
33 4/1/2009 32,451,975.15 47,972.04
34 5/1/2009 32,397,918.58 54,056.57
35 6/1/2009 32,349,379.51 48,539.07
36 7/1/2009 32,294,771.15 54,608.36
37 8/1/2009 32,245,658.82 49,112.33
38 9/1/2009 32,196,273.55 49,385.27
39 10/1/2009 32,140,841.74 55,431.81
40 11/1/2009 32,090,873.93 49,967.81
41 12/1/2009 32,034,875.24 55,998.69
42 1/1/2010 31,984,318.51 50,556.73
43 2/1/2010 31,933,480.81 50,837.70
44 3/1/2010 31,865,185.68 68,295.13
45 4/1/2010 31,813,685.89 51,499.79
46 5/1/2010 31,756,196.39 57,489.50
47 6/1/2010 31,704,090.87 52,105.52
48 7/1/2010 31,646,011.93 58,078.94
49 8/1/2010 31,593,294.05 52,717.88
50 9/1/2010 31,540,283.19 53,010.86
51 10/1/2010 31,481,323.24 58,959.95
52 11/1/2010 31,427,690.09 53,633.15
53 12/1/2010 31,368,124.58 59,565.51
54 1/1/2011 31,313,862.31 54,262.27
55 2/1/2011 31,259,298.47 54,563.84
56 3/1/2011 31,187,619.10 71,679.37
57 4/1/2011 31,132,353.65 55,265.45
58 5/1/2011 31,071,199.72 61,153.93
59 6/1/2011 31,015,287.26 55,912.46
60 7/1/2011 30,953,503.71 61,783.55
61 8/1/2011 30,896,937.14 56,566.57
62 9/1/2011 30,840,056.20 56,880.94
63 10/1/2011 30,777,330.20 62,726.00
64 11/1/2011 30,719,784.53 57,545.67
65 12/1/2011 30,656,411.67 63,372.86
66 1/1/2012 30,598,193.98 58,217.69
67 2/1/2012 30,539,652.74 58,541.24
68 3/1/2012 30,469,835.99 69,816.75
69 4/1/2012 30,410,581.38 59,254.61
70 5/1/2012 30,345,545.52 65,035.86
71 6/1/2012 30,285,600.16 59,945.36
72 7/1/2012 30,219,892.11 65,708.05
73 8/1/2012 30,159,248.41 60,643.70
74 9/1/2012 30,098,267.68 60,980.73
75 10/1/2012 30,031,552.09 66,715.59
76 11/1/2012 29,969,861.67 61,690.42
77 12/1/2012 29,902,455.47 67,406.20
78 1/1/2013 29,840,047.58 62,407.89
79 2/1/2013 29,777,292.85 62,754.73
80 3/1/2013 29,698,174.14 79,118.71
81 4/1/2013 29,634,630.94 63,543.20
82 5/1/2013 29,565,421.76 69,209.18
83 6/1/2013 29,501,140.77 64,280.99
84 7/1/2013 29,431,213.63 69,927.14
85 8/1/2013 29,366,186.77 65,026.86
86 9/1/2013 29,300,798.51 65,388.26
87 10/1/2013 29,229,793.87 71,004.64
88 11/1/2013 29,163,647.59 66,146.28
89 12/1/2013 29,091,905.30 71,742.29
90 1/1/2014 29,024,992.69 66,912.61
91 2/1/2014 28,957,708.21 67,284.48
92 3/1/2014 28,874,475.37 83,232.84
93 4/1/2014 28,806,354.37 68,121.00
94 5/1/2014 28,732,690.44 73,663.93
95 6/1/2014 28,663,781.46 68,908.98
96 7/1/2014 28,589,350.73 74,430.73
97 8/1/2014 28,519,645.12 69,705.61
98 9/1/2014 28,449,552.11 70,093.01
99 10/1/2014 28,373,969.18 75,582.93
100 11/1/2014 28,303,066.56 70,902.62
101 12/1/2014 28,226,695.78 76,370.78
102 1/1/2015 28,154,974.67 71,721.11
103 2/1/2015 28,082,854.96 72,119.71
104 3/1/2015 27,995,230.55 87,624.41
105 4/1/2015 27,922,223.05 73,007.50
106 5/1/2015 27,843,803.97 78,419.08
107 6/1/2015 27,769,954.90 73,849.07
108 7/1/2015 27,690,716.87 79,238.03
109 8/1/2015 27,616,017.00 74,699.87
110 9/1/2015 27,540,901.98 75,115.02
111 10/1/2015 27,460,432.03 80,469.95
112 11/1/2015 27,384,452.33 75,979.70
113 12/1/2015 27,303,140.94 81,311.39
114 1/1/2016 27,226,287.07 76,853.87
115 2/1/2016 27,149,006.08 77,280.99
116 3/1/2016 27,061,561.17 87,444.91
117 4/1/2016 26,983,364.70 78,196.47
118 5/1/2016 26,899,896.12 83,468.58
119 6/1/2016 26,820,801.18 79,094.94
120 7/1/2016 -- 26,820,801.11
