Exhibit 4
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XXXX XX XXXXXXX COMMERCIAL MORTGAGE INC.,
Depositor,
BANK OF AMERICA, NATIONAL ASSOCIATION,
Master Servicer,
CWCAPITAL ASSET MANAGEMENT LLC,
Special Servicer,
and
XXXXX FARGO BANK, N.A.,
Trustee and REMIC Administrator
---------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of November 1, 2006
---------------------------------
$2,462,208,204
Commercial Mortgage Pass-Through Certificates
Series 2006-6
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 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 and Whole Loan Custodial Account...........
Section 3.05 Permitted Withdrawals From the Certificate Account, the
Distribution Account, the Whole Loan Custodial Accounts
and the Excess Liquidation Proceeds Account.................
Section 3.06 Investment of Funds in the Certificate Account, the
Interest Reserve Account, the Excess Interest
Distribution Account, the REMIC I Distribution Account,
the REMIC II Distribution Account, the Excess
Liquidation Proceeds Account and the REO Account............
Section 3.07 Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage.......................................
Section 3.08 Enforcement of Alienation Clauses............................
Section 3.09 Realization Upon Defaulted Loans.............................
Section 3.10 Trustee to Cooperate; Release of Mortgage Files..............
Section 3.11 Servicing Compensation; Interest on Servicing Advances;
Payment of Certain Expenses; Obligations of the Trustee
Regarding Back-up Servicing Advances........................
Section 3.12 Inspections; Collection of Financial Statements..............
Section 3.13 [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 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..................
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 Matters Relating to the Chicago Loop Portfolio
Loan........................................................
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..................
Section 12.11 Insolvency...................................................
LIST OF EXHIBITS AND SCHEDULES
EXHIBIT A-1 Form of Class A-1 Certificate
EXHIBIT A-2 Form of Class A-2 Certificate
EXHIBIT A-3 Form of Class A-3 Certificate
EXHIBIT A-4 Form of Class A-SB Certificate
EXHIBIT A-5 Form of Class A-4 Certificate
EXHIBIT A-6 Form of Class A-1A Certificate
EXHIBIT A-7 Form of Class XC Certificate
EXHIBIT A-8 Form of Class XP Certificate
EXHIBIT A-9 Form of Class A-M Certificate
EXHIBIT A-10 Form of Class A-J Certificate
EXHIBIT A-11 Form of Class B Certificate
EXHIBIT A-12 Form of Class C Certificate
EXHIBIT A-13 Form of Class D Certificate
EXHIBIT A-14 Form of Class E Certificate
EXHIBIT A-15 Form of Class F Certificate
EXHIBIT A-16 Form of Class G Certificate
EXHIBIT A-17 Form of Class H Certificate
EXHIBIT A-18 Form of Class J Certificate
EXHIBIT A-19 Form of Class K Certificate
EXHIBIT A-20 Form of Class L Certificate
EXHIBIT A-21 Form of Class M Certificate
EXHIBIT A-22 Form of Class N Certificate
EXHIBIT A-23 Form of Class O Certificate
EXHIBIT A-24 Form of Class P Certificate
EXHIBIT A-25 Form of Class R-I Certificate
EXHIBIT A-26 Form of Class R-II Certificate
EXHIBIT A-27 Form of Class 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 Form of 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 Class XP Reference Rates
Mortgage Loans that Initially Pay Interest Only
SCHEDULE VI Mortgage Loans Containing Additional Debt
SCHEDULE VII [RESERVED]
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
This Pooling and Servicing Agreement (this "Agreement"), dated and
effective as of November 1, 2006, is by and among BANC OF AMERICA COMMERCIAL
MORTGAGE INC., as Depositor, BANK OF AMERICA, NATIONAL ASSOCIATION, as Master
Servicer, CWCAPITAL ASSET MANAGEMENT LLC, 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 X Certificates for
each Class of the REMIC II Certificates (the "Corresponding Certificates"):
Corresponding Corresponding
Corresponding REMIC I Regular REMIC I Components of Class
Certificates Interests(1) Principal Balance X Certificates(1)
------------- --------------- ----------------- -------------------
Class A-1 LA-1-1 $9,377,000 XA-1-1
LA-1-2 $2,309,000 XA-1-2
LA-1-3 $28,314,000 XA-1-3
Class A-2 LA-2-1 $7,429,000 XA-2-1
LA-2-2 $41,304,000 XA-2-2
LA-2-3 $40,296,000 XA-2-3
LA-2-4 $39,917,000 XA-2-4
LA-2-5 $39,001,000 XA-2-5
LA-2-6 $37,771,000 XA-2-6
LA-2-7 $275,982,000 XA-2-7
Class A-3 LA-3-1 $133,000 XA-3-1
LA-3-2 $183,239,000 XA-3-2
LA-3-3 $17,353,000 XA-3-3
LA-3-4 $21,053,000 XA-3-4
LA-3-5 $22,625,000 XA-3-5
LA-3-6 $40,597,000 XA-3-6
Class A-SB LA-SB-1 $217,000 XA-SB-1
LA-SB-2 $9,727,000 XA-SB-2
LA-SB-3 $5,265,000 XA-SB-3
LA-SB-4 $5,639,000 XA-SB-4
LA-SB-5 $35,982,000 XA-SB-5
Class A-4 LA-4-1 $136,670,000 XA-4-1
LA-4-2 $293,435,000 XA-4-2
Class A-1A LA-1A-1 $76,000 XA-1A-1
LA-1A-2 $88,000 XA-1A-2
LA-1A-3 $7,257,000 XA-1A-3
LA-1A-4 $8,437,000 XA-1A-4
LA-1A-5 $8,315,000 XA-1A-5
LA-1A-6 $8,130,000 XA-1A-6
LA-1A-7 $8,155,000 XA-1A-7
LA-1A-8 $7,892,000 XA-1A-8
LA-1A-9 $7,771,000 XA-1A-9
LA-1A-10 $68,080,000 XA-1A-10
LA-1A-11 $6,156,000 XA-1A-11
LA-1A-12 $20,510,000 XA-1A-12
LA-1A-13 $5,433,000 XA-1A-13
LA-1A-14 $38,545,000 XA-1A-14
LA-1A-15 $235,065,000 XA-1A-15
Class A-M LA-M $246,220,000 XA-M
Class A-J LA-J $193,900,000 XA-J
Class B LB $49,244,000 XB
Class C LC-1 $3,664,000 XC-1
LC-2 $13,853,000 XC-2
LC-3 $7,105,000 XC-3
Class D LD-1 $5,085,000 XD-1
LD-2 $15,007,000 XD-2
LD-3 $10,686,000 XD-3
Class E LE-1 $19,000 XE-1
LE-2 $20,312,000 XE-2
LE-3 $10,446,000 XE-3
Class F LF-1 $6,037,000 XF-1
LF-2 $21,663,000 XF-2
Class G LG-1 $11,332,000 XG-1
LG-2 $16,368,000 XG-2
Class H LH-1 $18,967,000 XH-1
LH-2 $11,811,000 XH-2
Class J LJ-1 $1,224,000 XJ-1
LJ-2 $4,931,000 XJ-2
Class K LK $9,233,000 XK
Class L LL $9,234,000 XL
Class M LM $3,078,000 XM
Class N LN $9,233,000 XN
Class O LO $9,233,000 XO
Class P LP $30,778,204 XP
(1) The REMIC I Regular Interest(s) and the Component(s) of the Class X
Certificates that correspond to any particular Class of REMIC II Regular
Certificates also correspond to each other and, accordingly, constitute
the (i) "Corresponding REMIC I Regular Interests" and (ii) "Corresponding
Components", respectively, with respect to each other.
REMIC II
As provided herein, the Trustee will elect to treat that portion of
the Trust Fund consisting of the REMIC I Regular Interests and certain other
assets subject to this Agreement as a REMIC for federal income tax purposes, and
such segregated asset pool will be designated as "REMIC II". The Class A-1,
Class X-0, Xxxxx X-0, Class A-SB, Class A-4, Class A-1A, Class XC, Class XP,
Class A-M, Class A-J, Class B, Class C, Class D, Class E, Class F, Class G,
Class H, Class J, Class K, Class L, Class M, Class N, Class O and Class P
Certificates will constitute "regular interests" in REMIC II, and the Class R-II
Certificates will constitute the sole Class of "residual interests" in REMIC II
for purposes of the REMIC Provisions.
The following table sets forth the designation, the approximate
initial Pass-Through Rate and the Initial Class Principal Balance for each of
the Classes of REMIC II Regular Certificates (which are issued by REMIC II):
` Approximate Initial Initial Class
Designation Pass-Through Rate Principal Balance
----------------------------- --------------------- -------------------
REMIC II Regular Certificates
Class A-1 5.2260% per annum $ 40,000,000
Class A-2 5.3090% per annum $ 481,700,000
Class A-3 5.3690% per annum $ 285,000,000
Class A-SB 5.3400% per annum $ 56,830,000
Class A-4 5.3560% per annum $ 430,105,000
Class A-1A 5.3470% per annum $ 429,910,000
Class A-M 5.3900% per annum $ 246,220,000
Class A-J 5.4210% per annum $ 193,900,000
Class B 5.4800% per annum $ 49,244,000
Class C 5.5100% per annum $ 24,622,000
Class D 5.5500% per annum $ 30,778,000
Class E 5.6190% per annum (1) $ 30,777,000
Class F 5.7560% per annum (1) $ 27,700,000
Class G 5.7741% per annum (2) $ 27,700,000
Class H 5.8461% per annum (3) $ 30,778,000
Class J 5.0930% per annum (1) $ 6,155,000
Class K 5.0930% per annum (1) $ 9,233,000
Class L 5.0930% per annum (1) $ 9,234,000
Class M 5.0930% per annum (1) $ 3,078,000
Class N 5.0930% per annum (1) $ 9,233,000
Class O 5.0930% per annum (1) $ 9,233,000
Class P 5.0930% per annum (1) $ 30,778,204
Class XC 0.0473% per annum (4) $ 2,462,208,204(5)
Class XP 0.4402% per annum (4) $ 2,400,433,000(5)
------------
(1) Initial Pass-Through Rate. The Pass-Through Rate for the Class E, Class F,
Class J, Class K, Class L, Class M, Class N, Class O and Class P
Certificates for each Distribution Date will not exceed the Weighted
Average Adjusted Net Mortgage Rate for such Distribution Date.
(2) Initial Pass-Through Rate. The Pass-Through Rate for the Class G
Certificates for each Distribution Date will equal the Weighted Average
Adjusted Net Mortgage Rate for such Distribution Date minus 0.0720%.
(3) Initial Pass-Through Rate. The Pass-Through Rate for the Class H
Certificates for each Distribution Date will equal the Weighted Average
Adjusted Net Mortgage Rate for such Distribution Date.
(4) The Pass-Through Rates for each of the Class XC and Class XP Certificates
will be calculated in accordance with the definitions of "Class XC
Pass-Through Rate" and "Class XP Pass-Through Rate", respectively.
(5) The Class XC and Class XP Certificates will not have Class Principal
Balances; rather, each such Class of Certificates will accrue interest as
provided herein on the related Certificate 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 portion of the
Grantor Trust for federal income tax purposes and the Class V Certificates
represent undivided beneficial interests in such portion.
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 XC and Class XP Certificates for any Distribution Date, the
sum of the Accrued Component Interest for the related Interest Accrual Period
for all of their respective Components for such Distribution Date. For the
avoidance of doubt, the Accrued Certificate Interest in respect of any Class of
REMIC II Regular Certificates for any Distribution Date shall be deemed to have
accrued during the applicable Interest Accrual Period. Accrued 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 XC or Class XP Certificates for any Distribution Date, one month's
interest at the Class XC Strip Rate or Class XP Strip Rate applicable to such
Component for such Distribution Date, accrued on the Component Notional Amount
of such Component outstanding immediately prior to such Distribution Date.
Accrued Component Interest shall be calculated as described in the definitions
of Class XC Strip Rate or Class XP Strip Rate with respect to any applicable
Component and any Distribution Date, and shall be deemed to accrue during the
calendar month preceding the month in which such Distribution Date occurs.
"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 REO Loan,
for any Distribution Date, the annualized rate at which interest would have to
accrue thereon on a 30/360 Basis during the most recently ended calendar month
to produce the actual amount of interest accrued (or, if such Loan or REO Loan,
as the case may be, is prepaid, in whole or in part, or otherwise liquidated
during such calendar month, that otherwise would have accrued) in respect of
such Loan or REO Loan, as the case may be, at the related Net Mortgage Rate in
effect for such Loan or REO 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 Loan, divided by
30; provided, however, that with respect to such Loan or REO 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 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 Loan with a Stated Principal Balance as of the date of
such appraisal of $2,000,000 or less, at the Special Servicer's option, either a
limited appraisal and a summary report or an internal valuation prepared by the
Special Servicer) that indicates the "market value" of the subject property, as
defined in 12 C.F.R. ss.225.62(g), and is conducted by a Qualified Appraiser (or
by the Special Servicer in the case of a limited appraisal and summary report or
internal valuation with respect to a Loan or an REO Loan with a Stated Principal
Balance as of the date of such appraisal or valuation of $2,000,000 or less).
"Appraisal Reduction Amount": With respect to any Required Appraisal
Loan, an amount (calculated as of the Determination Date by the 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 Loan) equal to the excess,
if any, of:
(1) the sum of (a) the Stated Principal Balance of such Required
Appraisal Loan as of such Determination Date, (b) to the extent not previously
advanced by or on behalf of the Master Servicer, or the Trustee, all unpaid
interest (net of Default Interest) accrued on such Required Appraisal Loan
through the most recent Due Date prior to such Determination Date, (c) all
unpaid Master Servicing Fees, Special Servicing Fees, Trustee Fees and
Additional Trust Fund Expenses accrued with respect to such Required Appraisal
Loan, (d) all related unreimbursed Advances made by or on behalf of the Master
Servicer, the Special Servicer or the Trustee with respect to such Required
Appraisal Loan and reimbursable out of the Trust Fund and all Advances related
to such Required Appraisal Loan that were not reimbursed out of collections on
such Required Appraisal Loan, together with all unpaid Advance Interest accrued
on such Advances, and (e) all currently due but unpaid real estate taxes and
assessments, insurance premiums and, if applicable, ground rents in respect of
the related Mortgaged Property or REO Property, as applicable, for which neither
the Master Servicer nor the Special Servicer holds any Escrow Payments or
Reserve Funds; over
(2) the sum of (x) the excess, if any, of (i) 90% of the Appraised
Value of the related Mortgaged Property or REO Property (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 Loan, and (y) any Escrow Payments, Reserve Funds and/or Letters of
Credit held by the Master Servicer or the Special Servicer with respect to such
Required Appraisal Loan, the related Mortgaged Property or any related REO
Property (exclusive of any such items that are to be applied to real estate
taxes, assessments, insurance premiums and/or ground rents or that were taken
into account in determining the Appraised Value of the related Mortgaged
Property or REO Property, as applicable, referred to in clause (2)(x)(i) of this
definition).
Notwithstanding the foregoing, if (i) an Appraisal Trigger Event
occurs with respect to any Loan, (ii) either (A) no Appraisal has been obtained
or conducted, as applicable in accordance with Section 3.19(b), with respect to
the related Mortgaged Property during the 12 month period prior to the date of
such Appraisal Trigger Event or (B) there shall have occurred since the date of
the most recent Appraisal a material change in the circumstances surrounding the
related Mortgaged Property that would, in the Special Servicer's judgment,
materially affect the value of the property, and (iii) no new Appraisal is
obtained or conducted, as applicable in accordance with Section 3.19(b), within
60 days after such Appraisal Trigger Event, then (x) until such new Appraisal is
obtained or conducted, as applicable in accordance with Section 3.19(b), the
Appraisal Reduction Amount shall equal 25% of the Stated Principal Balance of
such Required Appraisal Loan, and (y) upon receipt or performance, as applicable
in accordance with Section 3.19(b), of such new Appraisal by the Special
Servicer, the Appraisal Reduction Amount for such Required Appraisal Loan will
be recalculated in accordance with the preceding sentence of this definition.
Also notwithstanding the foregoing, if and when any
Cross-Collateralized Mortgage Loan becomes a Required Appraisal Loan, an
Appraisal Reduction Amount shall be calculated for the entire
Cross-Collateralized 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 Loans.
In addition, notwithstanding the foregoing and for the avoidance of
doubt, for purposes of calculating Appraisal Reduction Amounts for determining
change of control with respect to any Whole Loan, references to the Stated
Principal Balance will be to the entire Stated Principal Balance thereof (i.e.,
the aggregate Stated Principal Balances of the related Mortgage Loan and, in the
case of a Whole Loan, the related Companion Loan).
For the avoidance of doubt and for purposes of calculating Appraisal
Reduction Amounts in connection with any P&I Advance required to be made under
this Agreement for a Mortgage Loan constituting a part of a Whole Loan, such
calculation shall be made based upon and allocated solely to the Stated
Principal Balance of the related Mortgage Loan contained in such Whole Loan and
shall exclude the Stated Principal Balance of the related Companion Loan.
"Appraisal Trigger Event": With respect to any Loan, any of the
following events:
(i) such Loan becomes a Modified Loan;
(ii) any Monthly Payment with respect to such Loan remains
unpaid for 60 days past the Due Date for such payment (or for such
shorter period at the end of which such delinquency will become a
Servicing Transfer Event); provided, however, solely in the case of
a delinquent Balloon Payment and if (x) the related Borrower is
actively seeking a refinancing commitment, (y) the related Borrower
continues to make payments in the amount of its Monthly Payment, and
(z) subject to Section 3.21(f), the Directing Certificateholder
consents, failure to pay such Balloon Payment during such 60-day
period shall not constitute an Appraisal Trigger Event if the
related Mortgagor has delivered to the Master Servicer, on or before
the 60th day after the Due Date of such Balloon Payment, a
refinancing commitment reasonably acceptable to the Master Servicer,
for such longer period, not to exceed 120 days beyond such Due Date,
during which the refinancing would occur;
(iii) the passage of 60 days after the Special Servicer
receives notice that the Mortgagor under such Loan becomes the
subject of bankruptcy, insolvency or similar proceedings that remain
undischarged and undismissed;
(iv) the passage of 60 days after the Special Servicer
receives notice that a receiver or similar official is appointed
with respect to the related Mortgaged Property;
(v) the related Mortgaged Property becomes an REO Property; or
(vi) if a Loan has been extended three times, upon the
sixtieth day after the third extension.
"Appraised Value": With respect to any Mortgaged Property 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 Loan and the provisions
set forth in Section 3.21(e), the approvals and consents and the time frames for
such approvals and consents necessary in connection with the taking of a Special
Action or the extension of the maturity date of a Loan set forth below (in each
case subject to the limitations set forth in Section 3.21(e) and Section
3.21(f):
(i) with respect to any Performing Loan, the Master Servicer
shall obtain the approval or consent of the Special Servicer in
connection with a Special Action;
(ii) with respect to any Performing Loan, the Master Servicer
shall obtain the approval and consent of the Special Servicer and
the Special Servicer shall obtain the approval and consent of the
Directing Certificateholder in connection with a Special Action that
involves an extension of the maturity date of such Loan; and
(iii) with respect to any Specially Serviced Loan, the Special
Servicer shall obtain the approval and consent of the Directing
Certificateholder in connection with a Special Action.
With respect to any extension or Special Action set forth in clauses
(i) and (ii) of this definition, 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 (except as provided in
Section 3.08) and all information reasonably requested by the Special Servicer,
as such time frame may be extended if the Special Servicer is required to seek
the consent of the Directing Certificateholder or any Rating Agency. If the
Special Servicer so fails to respond to the Master Servicer within the time
period referenced in the immediately preceding sentence, such approval and
consent shall be deemed granted. With respect to any Special Action described in
clauses (ii) and (iii) of this definition, the Directing Certificateholder shall
respond to the Special Servicer within ten Business Days of its receipt of such
request in writing (which may be via e-mail or facsimile) and such request will
be deemed granted if the Directing Certificateholder does not respond in such
time frame.
"ARD Loan": Any Mortgage Loan 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 Loan remains outstanding and part of the Trust
Fund, if no Monthly Payment (other than a delinquent Balloon Payment) is due for
such Due Date, the scheduled monthly payment of principal and/or interest deemed
to be due in respect thereof on such Due Date equal to the amount that would
have been due in respect of such Loan on such Due Date if it had been required
to continue to accrue interest (exclusive, in the case of an ARD Loan after its
Anticipated Repayment Date, of Excess Interest) in accordance with its terms,
and to pay principal in accordance with the amortization schedule (if any), in
effect immediately prior to, and without regard to the occurrence of, its most
recent scheduled maturity date (as such terms and amortization schedule may have
been modified, and such maturity date may have been extended, in connection with
a bankruptcy or similar proceeding involving the related Mortgagor or a
modification, waiver or amendment of such Loan granted or agreed to by the
Master Servicer or Special Servicer pursuant to Section 3.20). With respect to
any REO Loan, for any Due Date therefor as of which the related REO Property
remains part of the Trust Fund, the scheduled monthly payment of principal
and/or interest deemed to be due in respect thereof on such Due Date equal to
the Monthly Payment that was due (or, in the case of a Balloon Loan described in
the preceding sentence of this definition, the Assumed Monthly Payment that was
deemed due) in respect of the related Loan on the last Due Date prior to its
becoming an REO Loan.
"Available Distribution Amount": With respect to any Distribution
Date and each Mortgage Loan and, in the case of a Whole 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), (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 and (x) with respect to the first Distribution Date, the Interest
Deposit Amounts; 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 November 20, 2006,
relating to trust funds established by the Depositor and publicly offered
mortgage pass-through certificates evidencing interests therein.
"Bear Xxxxxxx": Bear Xxxxxxx Commercial Mortgage, Inc., and its
successors in interest.
"Book-Entry Certificate": Any Certificate registered in the name of
the Depository or its nominee.
"Borrower": Individually and collectively, as the context may
require, the obligor or obligors under a Loan, including any Person that has not
signed the related Mortgage Note but owns an interest in the related Mortgaged
Property, which interest has been encumbered to secure such Loan.
"Breach": With respect to any Mortgage Loan, any breach of
representation or warranty made by the related Mortgage Loan Seller pursuant to
Section 4(b) of the related Mortgage Loan Purchase and Sale Agreement.
"Business Day": Any day other than a Saturday, a Sunday or a day on
which banking institutions in Maryland, New York, Pennsylvania, Massachusetts,
Washington, D.C., 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 2006-6 as executed by the Trustee and
authenticated and delivered hereunder by the Certificate Registrar.
"Certificate Account": The segregated account or accounts created
and maintained by the Master Servicer pursuant to Section 3.04(a) on behalf of
the Trustee in trust for Certificateholders, which shall be entitled "Bank of
America, National Association, as Master Servicer, in trust for the registered
holders of Banc of America Commercial Mortgage Inc., Commercial Mortgage
Pass-Through Certificates, Series 2006-6, 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 Notional Amount, as the case may be,
and the denominator of which is the related Initial Class Principal Balance or
Initial Class Notional Amount, as the case may be.
"Certificate Notional Amount": With respect to any Class X
Certificate, as of any date of determination, the then notional amount of such
Certificate equal to the product of (a) the Percentage Interest evidenced by
such Certificate, multiplied by (b) the then Class Notional Amount of such Class
X Certificate, as applicable.
"Certificate Owner": With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Certificate as reflected on the books
of the Depository or on the books of a Depository Participant or on the books of
an indirect participating brokerage firm for which a Depository Participant acts
as agent.
"Certificate Principal Balance": With respect to any Principal Pay
Certificate, as of any date of determination, the then outstanding principal
amount of such Certificate equal to the product of (a) the Percentage Interest
evidenced by such Certificate, multiplied by (b) the then Class Principal
Balance of the Class of Certificates to which such Certificate belongs.
"Certificate Register" and "Certificate Registrar": The register
maintained and the registrar appointed pursuant to Section 5.02.
"Certificateholder" or "Holder": The Person in whose name a
Certificate is registered in the Certificate Register; provided that solely for
the purposes of giving any consent, approval or waiver pursuant to this
Agreement, any Certificate registered in the name of the Depositor, either
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.
"Chicago Loop Portfolio Companion Loan": The loan that, if and when
the Chicago Loop Portfolio Future Advance occurs, will be evidenced by the
Chicago Loop Portfolio Note B.
"Chicago Loop Portfolio Companion Loan Holder": The holder of the
Chicago Loop Portfolio Companion Loan, if and when the Chicago Loop Portfolio
Future Advance occurs.
"Chicago Loop Portfolio Future Advance": As defined in Section
3.29(a).
"Chicago Loop Portfolio Loan": The Mortgage Loan identified as Loan
No. 45829 in the Mortgage Loan Schedule, which, together with the Chicago Loop
Portfolio Note B, is secured by a Mortgage on the related Mortgaged Properties.
"Chicago Loop Portfolio Loan Intercreditor Agreement": The
intercreditor agreement dated as of November 29, 2006 by and between the Bear
Xxxxxxx Commercial Mortgage, Inc. (as "Lead Lender") and Bear Xxxxxxx Commercial
Mortgage, Inc. (as "Co-Lender") 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.
"Chicago Loop Portfolio Note B": The note that, if and when funded
pursuant to the Chicago Loop Portfolio Future Advance, will be pari passu with
the Chicago Loop Portfolio Loan and will be in an aggregate amount not to exceed
$9,500,000.
"Chicago Loop Portfolio Whole Loan": The Chicago Loop Portfolio Loan
together with the Chicago Loop Portfolio Loan Note B. References herein to
Chicago Loop Portfolio Whole Loan shall be construed to refer to the aggregate
indebtedness under the Chicago Loop Portfolio Loan and the Chicago Loop
Portfolio Loan Note B.
"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 A-1, Class X-0,
Xxxxx X-0, Class A-SB, 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
5.2260%.
"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-6
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class A-1A Pass-Through Rate": A fixed per annum rate equal to
5.3470%.
"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
5.3090%.
"Class A-3 Certificate": Any one of the Certificates with a "Class
A-3" designation on the face thereof, substantially in the form of Exhibit A-3
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class A-3 Pass-Through Rate": A fixed per annum rate equal to
5.3690%.
"Class A-4 Certificate": Any one of the Certificates with a "Class
A-4" designation on the face thereof, substantially in the form of Exhibit A-5
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class A-4 Pass-Through Rate": A fixed per annum rate equal to
5.3560%.
"Class A-SB Certificate": Any one of the Certificates with a "Class
A-SB" designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class A-SB Pass-Through Rate": A fixed per annum rate equal to
5.3400%.
"Class A-J Certificate": Any one of the Certificates with a "Class
A-J" designation on the face thereof, substantially in the form of Exhibit A-10
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class A-J Pass-Through Rate": A fixed per annum rate equal to
5.4210%.
"Class A-M Certificate": Any one of the Certificates with a "Class
A-M" designation on the face thereof, substantially in the form of Exhibit A-9
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class A-M Pass-Through Rate": A fixed per annum rate equal to
5.3900%.
"Class B Certificate": Any one of the Certificates with a "Class B"
designation on the face thereof, substantially in the form of Exhibit A-11
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class B Pass-Through Rate": A fixed per annum rate equal to
5.4800%.
"Class C Certificate": Any one of the Certificates with a "Class C"
designation on the face thereof, substantially in the form of Exhibit A-12
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class C Pass-Through Rate": A fixed per annum rate equal to
5.5100%.
"Class D Certificate": Any one of the Certificates with a "Class D"
designation on the face thereof, substantially in the form of Exhibit A-13
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class D Pass-Through Rate": A fixed per annum rate equal to
5.5500%.
"Class E Certificate": Any one of the Certificates with a "Class E"
designation on the face thereof, substantially in the form of Exhibit A-14
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class E Pass-Through Rate": A per annum rate equal to 5.6190%;
provided, however, that the Class E Pass-Through Rate shall not exceed the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class F Certificate": Any one of the Certificates with a "Class F"
designation on the face thereof, substantially in the form of Exhibit A-15
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class F Pass-Through Rate": A per annum rate equal to 5.7560%;
provided, however, that the Class F Pass-Through Rate shall not exceed the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class G Certificate": Any one of the Certificates with a "Class G"
designation on the face thereof, substantially in the form of Exhibit A-16
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class G Pass-Through Rate": A per annum rate equal to the Weighted
Average Adjusted Net Mortgage Rate for the related Distribution Date less
0.0720%.
"Class H Certificate": Any one of the Certificates with a "Class H"
designation on the face thereof, substantially in the form of Exhibit A-17
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class H Pass-Through Rate": A per annum rate equal to the Weighted
Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class J Certificate": Any one of the Certificates with a "Class J"
designation on the face thereof, substantially in the form of Exhibit A-18
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class J Pass-Through Rate": A per annum rate equal to 5.0930%;
provided, however, that the Class J Pass-Through Rate shall not exceed the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class K Certificate": Any one of the Certificates with a "Class K"
designation on the face thereof, substantially in the form of Exhibit A-19
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class K Pass-Through Rate": A per annum rate equal to 5.0930%;
provided, however, that the Class K Pass-Through Rate shall not exceed the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class L Certificate": Any one of the Certificates with a "Class L"
designation on the face thereof, substantially in the form of Exhibit A-20
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class L Pass-Through Rate": A per annum rate equal to 5.0930%;
provided, however, that the Class L Pass-Through Rate shall not exceed the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class M Certificate": Any one of the Certificates with a "Class M"
designation on the face thereof, substantially in the form of Exhibit A-21
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class M Pass-Through Rate": A per annum rate equal to 5.0930%;
provided, however, that the Class M Pass-Through Rate shall not exceed the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class N Certificate": Any one of the Certificates with a "Class N"
designation on the face thereof, substantially in the form of Exhibit A-22
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class N Pass-Through Rate": A per annum rate equal to 5.0930%;
provided, however, that the Class N Pass-Through Rate shall not exceed the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class O Certificate": Any one of the Certificates with a "Class O"
designation on the face thereof, substantially in the form of Exhibit A-23
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class O Pass-Through Rate": A per annum rate equal to 5.0930%;
provided, however, that the Class O Pass-Through Rate shall not exceed the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class P Certificate": Any one of the Certificates with a "Class P"
designation on the face thereof, substantially in the form of Exhibit A-24
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class P Pass-Through Rate": A per annum rate equal to 5.0930%;
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-25
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-26
attached hereto, and evidencing the sole Class of "residual interest" in REMIC
II for purposes of the REMIC Provisions.
"Class V Certificate": Any one of the Certificates with a "Class V"
designation on the face thereof, substantially in the form of Exhibit A-27
attached hereto, and evidencing undivided beneficial interests in the portion of
the Trust Fund consisting of Excess Interest and the Excess Interest
Distribution Account.
"Class X Certificates": Any one of the Class XC or Class XP
Certificates.
"Class X Notional Amount": The Class XC Notional Amount or the Class
XP Notional Amount.
"Class XC Certificate": Any one of the Certificates with a "Class
XC" designation on the face thereof, substantially in the form of Exhibit A-7
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class XC Notional Amount": As of any date of determination, the sum
of the then Component Notional Amounts of all of the Components.
"Class XC Pass-Through Rate": With respect to the initial
Distribution Date, 0.0473% per annum, and for any subsequent Distribution Date,
the weighted average of the Class XC Strip Rates for the respective Components
for such Distribution Date (weighted on the basis of the respective Component
Notional Amounts of such Components outstanding immediately prior to such
Distribution Date).
"Class XC Strip Rate": With respect to any Class of Components
(other than any Class XP Component) for any Distribution Date, a rate per annum
equal to (i) the Weighted Average Adjusted Net Mortgage Rate for such
Distribution Date, minus (ii) the Pass-Through Rate for the Corresponding
Certificates. In the case of any Class XP Component (i) for any Distribution
Date occurring on or before the related Class XP Component Crossover Date, (x)
the Weighted Average Adjusted Net Mortgage Rate for such Distribution Date minus
(y) the sum of the Pass-Through Rate for the Corresponding Certificates for such
Distribution Date and the Class XP Strip Rate for such Component for such
Distribution Date, and (ii) for any Distribution Date occurring after the
related Class XP Component Crossover Date, a rate per annum equal to (x) the
Weighted Average Adjusted Net Mortgage Rate for such Distribution Date, minus
(y) the Pass-Through Rate for the Corresponding Certificates (provided that in
no event shall any Class XC Strip Rate be less than zero).
"Class XP Certificate": Any one of the Certificates with a "Class
XP" designation on the face thereof, substantially in the form of Exhibit A-8
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class XP Component Crossover Date": With respect to each Class XP
Component, the related Class XP Component Crossover Date as set forth in the
table below:
Class XP Component Class XP Component Crossover Date
------------------------------------- ----------------------------------------
XA-1-2 and XA-1A-2 May 2007 Distribution Date
XA-1-3, XA-1A-3 and XA-2-1 November 2007 Distribution Date
XA-1A-4 and XA-2-2 May 2008 Distribution Date
XA-1A-5, XA-2-3, XJ-1, XK and XL November 2008 Distribution Date
XX-0X-0, XX-0-0, XX-0 and XJ-2 May 2009 Distribution Date
XX-0X-0, XX-0-0, XX-0 and XH-2 November 2009 Distribution Date
XX-0X-0, XX-0-0, XX-0 and XG-2 May 2010 Distribution Date
XX-0X-0, XX-0-0, XX-0-0, XE-1 and November 2010 Distribution Date
XX-0
XX-0X-00, XX-0-0, XX-XX-0 and XE-2 May 2011 Distribution Date
XX-0X-00, XX-0-0, XX-XX-0, XX-0 November 2011 Distribution Date
and XE-3
XX-0X-00, XX-0-0, XX-XX-0 and XD-2 May 2012 Distribution Date
XX-0X-00, XX-0-0, XX-XX-0, XC-1 November 2012 Distribution Date
and XX-0
XX-0X-00, XX-0-0, XX-XX-0, XX-0-0 May 2013 Distribution Date
and XX-0
XX-0X-00, XX-0-0, XX-X, XX-X, XX November 2013 Distribution Date
and XC-3
"Class XP Components": Each of Component XX-0-0, Xxxxxxxxx XX-0-0,
Component XX-0X-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X-0, Component XX-0X-0,
Xxxxxxxxx XX-0X-0, Component XX-0X-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X-0,
Component XA-1A-10, Component XA-1A-11, Component XA-1A-12, Component XA-1A-13,
Component XX-0X-00, Xxxxxxxxx XX-0X-00, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0,
Component XA-2-3, Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0,
Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0, Component XX-0-0,
Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0, Component XA-3-6, Component XX-0-0,
Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-XX-0, Component XA-SB-2, Component XA-SB-3,
Component XA-SB-4, Component XA-SB-5, Component XA-M, Component XA-J, Component
XB, Component XC-1, Component XC-2, Component XC-3, Component XD-1, Component
XD-2, Component XD-3, Component XE-1, Component XE-2, Component XE-3, Component
XX-0, Xxxxxxxxx XX-0, Xxxxxxxxx XX-0, Component XG-2, Component XH-1, Component
XH-2, Component XJ-1, Component XJ-2, Component XK and Component XL.
"Class XP (Class G) Fixed Strip Rate": The applicable Class XP Strip
Rate with respect to the Class G Certificates, 0.0420%.
"Class XP Notional Amount": As of any date of determination, the sum
of the then Component Notional Amounts of the Class XP Components, excluding the
Class XP Components for which the Class XP Component Crossover Date has
previously passed.
"Class XP Pass-Through Rate": With respect to the initial
Distribution Date, 0.4402% per annum, and for any subsequent Distribution Date,
the weighted average of the Class XP Strip Rates for the respective Class XP
Components for such Distribution Date (weighted on the basis of the respective
Component Notional Amounts of such Components outstanding immediately prior to
such Distribution Date).
"Class XP Reference Rate": For any Distribution Date, the rate per
annum corresponding to such Distribution Date on Schedule IV attached hereto.
"Class XP Strip Rate": With respect to each of the Class XP
Components for any Distribution Date, a rate per annum equal to (i) for any
Distribution Date occurring on or before the related Class XP Component
Crossover Date, (x) with respect to Component XG, the Class XP (Class G) Fixed
Strip Rate, and (y) with respect to each other Class XP Component, the lesser of
(I) the Weighted Average Adjusted Net Mortgage Rate for such Distribution Date
and (II) the Class XP Reference Rate for such Distribution Date minus (z) the
Pass-Through Rate for the Corresponding Certificates (provided that in no event
shall any Class XP Strip Rate be less than zero), and (ii) for any Distribution
Date occurring after the related Class XP Component Crossover Date, 0% per
annum.
"Clearstream": Clearstream Banking, societe anonyme.
"Closing Date": November 29, 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 Recovery Report; and
(d) such other reports as CMSA may designate as part of the CMSA
Investor Reporting Package that are reasonably acceptable to the Master
Servicer, Special Servicer or Trustee, as applicable.
"CMSA Loan Level Reserve-LOC Report": The monthly report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Loan Level Reserve LOC Report" available as of the
Closing Date on the CMSA Website, or such other form for the presentation of
such information and containing such additional information as may from time to
time be recommended by the CMSA for commercial mortgage securities transactions
generally and is reasonably acceptable to the Master Servicer.
"CMSA Loan Periodic Update File": The monthly report substantially
in the form of, and containing the information called for in, the downloadable
form of the "Loan Periodic Update File" available as of the Closing Date on the
CMSA Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage securities transactions generally and is
reasonably acceptable to the Master Servicer, the Special Servicer and the
Trustee.
"CMSA Loan Setup File": The report substantially in the form of, and
containing the information called for in, the downloadable form of the "Loan
Setup File" available as of the Closing Date on the CMSA Website, or such other
form for the presentation of such information and containing such additional
information as may from time to time be recommended by the CMSA for commercial
mortgage securities transactions generally and is reasonably acceptable to the
Master Servicer, the Special Servicer and the Trustee.
"CMSA NOI Adjustment Worksheet": A report substantially in the form
of, and containing the information called for in, the downloadable form of the
"NOI Adjustment Worksheet" available as of the Closing Date on the CMSA Website,
or such other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage securities transactions generally and is acceptable to the
Master Servicer or the Special Servicer, as applicable, and in any event, shall
present the computations made in accordance with the methodology described in
such form to "normalize" the full year net operating income and debt service
coverage numbers used in the other reports required by this Agreement.
"CMSA Operating Statement Analysis Report": A report substantially
in the form of, and containing the information called for in, the downloadable
form of the "Operating Statement Analysis Report" available as of the Closing
Date on the CMSA Website or in such other form for the presentation of such
information and containing such additional information as may from time to time
be recommended by the CMSA for commercial mortgage-backed securities
transactions generally and is reasonably acceptable to the Master Servicer.
"CMSA Property File": A report substantially in the form of, and
containing the information called for in, the downloadable form of the "Property
File" available as of the Closing Date on the CMSA Website, or such other form
for the presentation of such information and containing such additional
information as may from time to time be recommended by the CMSA for commercial
mortgage securities transactions generally and is reasonably acceptable to the
Master Servicer and the Special Servicer.
"CMSA Reconciliation of Funds Report": The report substantially in
the form of, and containing the information called for in, the downloadable form
of the "Reconciliation of Funds Report" available as of the Closing Date on the
CMSA Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage securities transactions generally and is
reasonably acceptable to the Trustee.
"CMSA REO Status Report": A report substantially in the form of, and
containing the information called for in, the downloadable form of the "REO
Status Report" available as of the Closing Date on the CMSA Website, or in such
other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage securities transactions generally and is reasonably
acceptable to the Special Servicer.
"CMSA Servicer Watch List": For any Determination Date, a report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Servicer Watch List" available as of the Closing Date
on the CMSA Website, or in such other final form for the presentation of such
information and containing such additional information as may from time to time
be promulgated as recommended by the CMSA for commercial mortgage securities
transactions generally and, insofar as it requires the presentation of
information in addition to that called for by the form of the "Servicer Watch
List" available as of the Closing Date on the CMSA Website, is reasonably
acceptable to the Master Servicer or the Special Servicer, as applicable.
"CMSA Special Servicer Loan File": The monthly report substantially
in the form of, and containing the information called for in, the downloadable
form of the "Special Servicer Loan File" available as of the Closing Date on the
CMSA Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage securities transactions generally and is
reasonably acceptable to the Special Servicer.
"CMSA Website": The CMSA's Website located at "xxx.xxxx.xxx" or such
other primary website as the CMSA may establish for dissemination of its report
forms.
"Code": The Internal Revenue Code of 1986, as amended.
"Collection Period": With respect to any Distribution Date, the
period commencing immediately following the Determination Date in the calendar
month preceding the month in which such Distribution Date occurs (or, in the
case of the initial Distribution Date, commencing immediately following the
Cut-off Date) and ending on and including the Determination Date in the calendar
month in which such Distribution Date occurs.
"Commission": The Securities and Exchange Commission.
"Companion Loan": Each of the EZ Storage Portfolio Companion Loan
and, if and when the Chicago Loop Portfolio Future Advance occurs, the Chicago
Loop Portfolio Companion Loan.
"Companion Loan Holder": With respect to the EZ Storage Portfolio
Companion Loan, the EZ Storage Portfolio Companion Loan Holder and, if and when
the Chicago Loop Portfolio Future Advance occurs, with respect to the Chicago
Loop Portfolio Companion Loan, the holder of the Chicago Loop Portfolio
Companion Loan.
"Compensating Interest Payment": With respect to any Distribution
Date, any payment made by the Master Servicer pursuant to Section 3.19(e) to
cover any Balloon Payment Interest Shortfall and Prepayment Interest Shortfalls
incurred during the related Collection Period.
"Component": Each of Component XX-0-0, Xxxxxxxxx XX-0-0, Component
XX-0-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X-0, Component
XX-0X-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X-0, Component XX-0X-0, Xxxxxxxxx
XX-0X-0, Xxxxxxxxx XX-0X-0, Component XA-1A-10, Component XA-1A-11, Component
XA-1A-12, Component XA-1A-13, Component XX-0X-00, Xxxxxxxxx XX-0X-00, Xxxxxxxxx
XX-0-0, Xxxxxxxxx XX-0-0, Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0,
Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0, Component XX-0-0,
Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0, Component XA-3-5, Component XA-3-6,
Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-XX-0, Component XA-SB-2,
Component XA-SB-3, Component XA-SB-4, Component XA-SB-5, Component XA-M,
Component XA-J, Component XB, Component XC-1, Component XC-2, Component XC-3,
Component XD-1, Component XD-2, Component XD-3, Component XE-1, Component XE-2,
Component XE-3, Component XX-0, Xxxxxxxxx XX-0, Xxxxxxxxx XX-0, Component XG-2,
Component XX-0, Xxxxxxxxx XX-0, Xxxxxxxxx XX-0, Component XJ-2, 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-1-1": One of the 64 components of the Class XC
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LA-1-1 as of any date of
determination.
"Component XA-1-2": One of the 64 components of the Class XC
Certificates and one of the 58 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-1-2 as of any date of determination.
"Component XA-1-3": One of the 64 components of the Class XC
Certificates and one of the 58 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-1-3 as of any date of determination.
"Component XA-1A-1": One of the 64 components of the Class XC
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LA-1A-1 as of any date of
determination.
"Component XA-1A-2": One of the 64 components of the Class XC
Certificates and one of the 58 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-1A-2 as of any date of determination.
"Component XA-1A-3": One of the 64 components of the Class XC
Certificates and one of the 58 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-1A-3 as of any date of determination.
"Component XA-1A-4": One of the 64 components of the Class XC
Certificates and one of the 58 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-1A-4 as of any date of determination.
"Component XA-1A-5": One of the 64 components of the Class XC
Certificates and one of the 58 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-1A-5 as of any date of determination.
"Component XA-1A-6": One of the 64 components of the Class XC
Certificates and one of the 58 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-1A-6 as of any date of determination.
"Component XA-1A-7": One of the 64 components of the Class XC
Certificates and one of the 58 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-1A-7 as of any date of determination.
"Component XA-1A-8": One of the 64 components of the Class XC
Certificates and one of the 58 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-1A-8 as of any date of determination.
"Component XA-1A-9": One of the 64 components of the Class XC
Certificates and one of the 58 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-1A-9 as of any date of determination.
"Component XA-1A-10": One of the 64 components of the Class XC
Certificates and one of the 58 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-1A-10 as of any date of determination.
"Component XA-1A-11": One of the 64 components of the Class XC
Certificates and one of the 58 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-1A-11 as of any date of determination.
"Component XA-1A-12": One of the 64 components of the Class XC
Certificates and one of the 58 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-1A-12 as of any date of determination.
"Component XA-1A-13": One of the 64 components of the Class XC
Certificates and one of the 58 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-1A-13 as of any date of determination.
"Component XA-1A-14": One of the 64 components of the Class XC
Certificates and one of the 58 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-1A-14 as of any date of determination.
"Component XA-1A-15": One of the 64 components of the Class XC
Certificates and one of the 58 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-1A-15 as of any date of determination.
"Component XA-2-1": One of the 64 components of the Class XC
Certificates and one of the 58 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-2-1 as of any date of determination.
"Component XA-2-2": One of the 64 components of the Class XC
Certificates and one of the 58 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-2-2 as of any date of determination.
"Component XA-2-3": One of the 64 components of the Class XC
Certificates and one of the 58 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-2-3 as of any date of determination.
"Component XA-2-4": One of the 64 components of the Class XC
Certificates and one of the 58 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-2-4 as of any date of determination.
"Component XA-2-5": One of the 64 components of the Class XC
Certificates and one of the 58 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-2-5 as of any date of determination.
"Component XA-2-6": One of the 64 components of the Class XC
Certificates and one of the 58 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-2-6 as of any date of determination.
"Component XA-2-7": One of the 64 components of the Class XC
Certificates and one of the 58 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-2-7 as of any date of determination.
"Component XA-3-1": One of the 64 components of the Class XC
Certificates and one of the 58 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-3-1 as of any date of determination.
"Component XA-3-2": One of the 64 components of the Class XC
Certificates and one of the 58 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-3-2 as of any date of determination.
"Component XA-3-3": One of the 64 components of the Class XC
Certificates and one of the 58 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-3-3 as of any date of determination.
"Component XA-3-4": One of the 64 components of the Class XC
Certificates and one of the 58 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-3-4 as of any date of determination.
"Component XA-3-5": One of the 64 components of the Class XC
Certificates and one of the 58 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-3-5 as of any date of determination.
"Component XA-3-6": One of the 64 components of the Class XC
Certificates and one of the 58 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-3-6 as of any date of determination.
"Component XA-4-1": One of the 64 components of the Class XC
Certificates and one of the 58 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-4-1 as of any date of determination.
"Component XA-4-2": One of the 64 components of the Class XC
Certificates and one of the 58 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-4-2 as of any date of determination.
"Component XA-SB-1": One of the 64 components of the Class XC
Certificates and one of the 58 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-SB-1 as of any date of determination.
"Component XA-SB-2": One of the 64 components of the Class XC
Certificates and one of the 58 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-SB-2 as of any date of determination.
"Component XA-SB-3": One of the 64 components of the Class XC
Certificates and one of the 58 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-SB-3 as of any date of determination.
"Component XA-SB-4": One of the 64 components of the Class XC
Certificates and one of the 58 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-SB-4 as of any date of determination.
"Component XA-SB-5": One of the 64 components of the Class XC
Certificates and one of the 58 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-SB-5 as of any date of determination.
"Component XA-J": One of the 64 components of the Class XC
Certificates and one of the 58 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-J as of any date of determination.
"Component XA-M": One of the 64 components of the Class XC
Certificates and one of the 58 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-M as of any date of determination.
"Component XB": One of the 64 components of the Class XC
Certificates and one of the 58 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LB as of any date of determination.
"Component XC-1": One of the 64 components of the Class XC
Certificates and one of the 58 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LC-1 as of any date of determination.
"Component XC-2": One of the 64 components of the Class XC
Certificates and one of the 58 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LC-2 as of any date of determination.
"Component XC-3": One of the 64 components of the Class XC
Certificates and one of the 58 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LC-3 as of any date of determination.
"Component XD-1": One of the 64 components of the Class XC
Certificates and one of the 58 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LD-1 as of any date of determination.
"Component XD-2": One of the 64 components of the Class XC
Certificates and one of the 58 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LD-2 as of any date of determination.
"Component XD-3": One of the 64 components of the Class XC
Certificates and one of the 58 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LD-3 as of any date of determination.
"Component XE-1": One of the 64 components of the Class XC
Certificates and one of the 58 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LE-1 as of any date of determination.
"Component XE-2": One of the 64 components of the Class XC
Certificates and one of the 58 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LE-2 as of any date of determination.
"Component XE-3": One of the 64 components of the Class XC
Certificates and one of the 58 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LE-3 as of any date of determination.
"Component XF-1": One of the 64 components of the Class XC
Certificates and one of the 58 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LF-1 as of any date of determination.
"Component XF-2": One of the 64 components of the Class XC
Certificates and one of the 58 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LF-2 as of any date of determination.
"Component XG-1": One of the 64 components of the Class XC
Certificates and one of the 58 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LG-1 as of any date of determination.
"Component XG-2": One of the 64 components of the Class XC
Certificates and one of the 58 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LG-2 as of any date of determination.
"Component XH-1": One of the 64 components of the Class XC
Certificates and one of the 58 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LH-1 as of any date of determination.
"Component XH-2": One of the 64 components of the Class XC
Certificates and one of the 58 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LH-2 as of any date of determination.
"Component XJ-1": One of the 64 components of the Class XC
Certificates and one of the 58 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LJ-1 as of any date of determination.
"Component XJ-2": One of the 64 components of the Class XC
Certificates and one of the 58 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LJ-2 as of any date of determination.
"Component XK": One of the 64 components of the Class XC
Certificates and one of the 58 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LK as of any date of determination.
"Component XL": One of the 64 components of the Class XC
Certificates and one of the 58 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LL as of any date of determination.
"Component XM": One of the 64 components of the Class XC
Certificates and having a Component Notional Amount equal to the then current
REMIC I Principal Balance of REMIC I Regular Interest LM as of any date of
determination.
"Component XN": One of the 64 components of the Class XC
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LN as of any date of
determination.
"Component XO": One of the 64 components of the Class XC
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LO as of any date of
determination.
"Component XP": One of the 64 components of the Class XC
Certificates and having a Component Notional Amount equal to the then current
REMIC I Principal Balance of REMIC I Regular Interest LP as of any date of
determination.
"Condemnation Proceeds": All cash amounts received by the Master
Servicer or the Special Servicer in connection with the taking of all or a part
of a Mortgaged Property by exercise of the power of eminent domain or
condemnation, exclusive of any portion thereof required to be released to the
related Mortgagor or any other third-party in accordance with applicable law
and/or the terms and conditions of the related loan documents or any other
applicable document.
"Confidential Information": As defined in Section 3.24.
"Controlling Class": As of any date of determination, the
outstanding Class of Sequential Pay Certificates with the lowest Payment
Priority (the Class A 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 2006-6,
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
2006-6, and with respect to any successor Trustee, the principal office thereof
as designated in writing to the Depositor.
"Corrected Loan": Any Loan that had been a Specially Serviced Loan
but as to which all Servicing Transfer Events have ceased to exist other than in
connection with a sale pursuant to Section 3.18.
"Corresponding Certificate": As defined in the Preliminary Statement
with respect to any Corresponding Component or any Corresponding REMIC I Regular
Interest.
"Corresponding Component": As defined in the Preliminary Statement
with respect to any Corresponding Certificate or any Corresponding REMIC I
Regular Interest.
"Corresponding REMIC I Regular Interest": As defined in the
Preliminary Statement with respect to any Corresponding Certificate or any
Corresponding Component.
"Covered Risks": As defined in Section 3.07(a).
"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 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) of this definition)
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), 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 Loans, in each case net of any portion of
such amounts that represents a recovery of the principal portion of any
Monthly Payment (other than a Balloon Payment) due, or of the principal
portion of any Assumed Monthly Payment deemed due, in respect of any such
REO Loan or the predecessor Mortgage Loan on a Due Date during or prior to
the related Collection Period and not previously recovered.
"Custodian": A Person who is at any time appointed by the Trustee
pursuant to Section 8.11 as a document custodian for the Mortgage Files, which
Person shall not be the Depositor, a Mortgage Loan Seller or an Affiliate of
either of them.
"Cut-off Date": November 1, 2006, or with respect to Loan Nos.
3403489 and 3402307 (in the Mortgage Loan Schedule), the related Mortgage Loan
closing date.
"Cut-off Date Balance": With respect to any Mortgage Loan or
Companion Loan, the outstanding principal balance of such Loan as of the Cut-off
Date, net of all unpaid payments of principal due in respect thereof on or
before such date.
"Debt Service Coverage Ratio": With respect to any Loan, as of any
date of determination, and calculated without regard to any
cross-collateralization feature of such Loan, the ratio of (x) the Net Cash Flow
(before payment of any debt service on such Loan) generated by the related
Mortgaged Property or Mortgaged Properties during the most recently ended period
of not more than 12 months or less than three months for which financial
statements (whether or not audited) have been received by or on behalf of the
related Mortgage Loan Seller (prior to the Closing Date) or the Master Servicer
or the Special Servicer (following the Closing Date), to (y) the product of the
amount of the Monthly Payment in effect for such Loan as of such date of
determination, multiplied by the number of months represented in the financial
statements. The Master Servicer may, in accordance with CMSA reporting
standards, report Net Cash Flow with respect to each Mortgaged Property where
one or more Loans are secured by multiple Mortgaged Properties; provided,
however, that for purposes of determining Debt Service Coverage Ratio
compliance, calculations shall be made at the Loan level.
"Default Charges": Any Default Interest and/or late payment charges
that are paid or payable, as the context may require, in respect of any Loan or
REO Loan.
"Default Interest": With respect to any Loan (or successor REO
Loan), any amounts collected thereon, other than late payment charges or
Prepayment Premiums, that represent interest in excess of interest accrued on
the principal balance of such Loan (or REO Loan) at the related Mortgage Rate,
such excess interest arising out of a default under such Loan.
"Defaulted Loan": A Loan (i) that is delinquent 60 days or more in
respect to a Monthly Payment (not including the Balloon Payment) or (ii) is more
than 60 days delinquent in respect of its Balloon Payment unless (w) the related
Borrower is actively seeking a refinancing commitment, (x) the related Borrower
continues to make payments in the amount of its Assumed Monthly Payment, (y)
subject to Section 3.21(f), the Directing Certificateholder consents, and (z)
the related Mortgagor has delivered to the Master Servicer, on or before the
60th day after the Due Date of such Balloon Payment, a refinancing commitment
reasonably acceptable to the Master Servicer, for such longer period, not to
exceed 120 days beyond the Due Date of such Balloon Payment, during which the
refinancing would occur (provided that if such refinancing does not occur during
such time specified in the commitment, the related Loan will immediately become
a Defaulted Loan), in either case such delinquency to be determined without
giving effect to any grace period permitted by the related Mortgage or Mortgage
Note and without regard to any acceleration of payments under the related
Mortgage and Mortgage Note, or (iii) as to which the Master Servicer or Special
Servicer has, by written notice to the related Mortgagor, accelerated the
maturity of the indebtedness evidenced by the related Mortgage Note.
"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 Cadim TACH inc.
"Directly Operate": With respect to any REO Property, the furnishing
or rendering of services to the tenants thereof, the management or operation of
such REO Property, the holding of such REO Property primarily for sale to
customers (other than the sale of an REO Property pursuant to Section 3.18, the
performance of any construction work thereon or any use of such REO Property in
a trade or business conducted by REMIC I 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. 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 2006-6, Distribution
Account".
"Distribution Date": The tenth day of any month, or if such tenth
day is not a Business Day, the Business Day immediately following, commencing in
December 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 Loan, the day of the month set
forth in the related Mortgage Note on which each Monthly Payment on the related
Loan had been scheduled to be first due.
"Eligible Account": Any of (i) an account maintained with a federal
or state chartered depository institution or trust company, including, without
limitation, the Trustee (if it meets the following rating criteria), the
long-term unsecured debt obligations of which are rated no less than "Aa3" by
Xxxxx'x and "AA-" by S&P (or "A-" by S&P if such depository's short-term
unsecured debt rating is no less than "A-1" by S&P) (if the deposits are to be
held in the account for more than 30 days) (or if such account is maintained
with PNC Bank, National Association, or KeyBank National Association rated no
less than "A" by Xxxxx'x and with respect to S&P meets the requirements set
forth in clause (i)), or the short-term unsecured debt obligations of which are
rated no less than "P-1" by Xxxxx'x and "A-1" by S&P (if the deposits are to be
held in the account for 30 days or less), in each case, at any time funds are on
deposit therein, (ii) a segregated trust account or accounts maintained with the
corporate trust department of a federally chartered depository institution or
trust company, including, without limitation, the Trustee, acting in its
fiduciary capacity and subject to the regulations regarding fiduciary funds on
deposit therein under 12 C.F.R. ss.9.10(b) that has a combined capital surplus
of at least $50,000,000, (iii) a segregated trust account or accounts maintained
with the corporate trust department of a state chartered depository institution
or trust company, including, without limitation, the Trustee, acting in its
fiduciary capacity and subject to regulations regarding fiduciary funds on
deposit therein substantially similar to 12 C.F.R. ss.9.10(b) that has a
combined capital surplus of at least $50,000,000, or (iv) any other account that
would not result in the downgrade, qualification (if applicable) or withdrawal
of the rating then assigned by either Rating Agency to any Class of Certificates
(as confirmed in writing by each Rating Agency).
"Emergency Advance": Any Servicing Advance, whether or not it is a
Servicing Advance that, pursuant hereto, the Special Servicer is required to
make or to request the Master Servicer to make, that must be made within five
Business Days of the Special Servicer's becoming aware that it must be made to
avoid any material penalty, any material harm to a Mortgaged Property or any
other material adverse consequence to the Trust Fund.
"Environmental Insurance Policy": With respect to any Mortgaged
Property or REO Property, any insurance policy covering pollution conditions
and/or other environmental conditions in effect with respect to such Mortgaged
Property or REO Property.
"ERISA": The Employee Retirement Income Security Act of 1974, as
amended.
"ERISA Restricted Certificate": Any Non-Investment Grade Sequential
Pay Certificate; 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., as
Trustee, in trust for the registered Holders of Banc of America Commercial
Mortgage Inc., Commercial Mortgage Pass-Through Certificates, Series 2006-6,
Excess Interest Distribution Account", and which must be an Eligible Account.
The Excess Interest Distribution Account shall not be an asset of REMIC I or
REMIC II formed hereunder.
"Excess Interest Rate": With respect to any ARD Loan after its
Anticipated Repayment Date, the incremental increase in the Mortgage Rate for
such Loan resulting from the passage of such Anticipated Repayment Date.
"Excess Liquidation Proceeds": An amount equal to the excess, if
any, of (a) the Net Liquidation Proceeds from the sale or liquidation of a
Specially Serviced Loan or REO Property, over (b) the sum of: (i) the amount
needed to pay off the Loan or related REO Loan in full, including any related
Workout-Delayed Reimbursement Amounts or Unliquidated Advances; (ii) all unpaid
Advances and any unpaid Advance Interest thereon and any unpaid principal; and
(iii) any related Liquidation Fee. For the avoidance of doubt, Excess
Liquidation Proceeds allocable to a Companion Loan 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 2006-6, 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).
"EZ Storage Portfolio Companion Loan": The loan evidenced by the EZ
Storage Portfolio Note A-2.
"EZ Storage Portfolio Companion Loan Holder": The holder of the EZ
Storage Portfolio Companion Loan.
"EZ Storage Portfolio Loan": The Mortgage Loan identified as Loan
No. 3403489 in the Mortgage Loan Schedule, which, together with the EZ Storage
Portfolio Loan Note A-1, is secured by a Mortgage on the related Mortgaged
Properties.
"EZ Storage Portfolio Loan Intercreditor Agreement": The Agreement
Among Note Holders dated as of November 17, 2006 by and between the EZ Storage
Portfolio Loan Note A-1 Holder and the EZ Storage Portfolio Loan Note A-2 Holder
relating to the relative rights of such holders, as the same may be further
amended from time to time in accordance with the terms thereof.
"EZ Storage Portfolio Loan Note A-1": With respect to the EZ Storage
Portfolio Loan, the related Mortgage Note that is included in the Trust Fund.
"EZ Storage Portfolio Loan Note A-1 Holder": The holder of the EZ
Storage Portfolio Loan Note A-1, initially Bank of America, National
Association.
"EZ Storage Portfolio Loan Note A-2": The Mortgage Note related to
EZ Storage Whole Loan that is not included in the Trust, which is pari passu in
right of payment to the EZ Storage Portfolio Loan Note A-1 as set forth in the
EZ Storage Portfolio Loan Intercreditor Agreement.
"EZ Storage Portfolio Loan Note A-2 Holder": The holder of the EZ
Storage Portfolio Loan Note A-2, initially Bank of America, National
Association.
"EZ Storage Portfolio Loan Noteholders": The holder of the Mortgage
Note for the EZ Storage Portfolio Loan and the EZ Storage Portfolio Loan Note
A-2 Holder.
"EZ Storage Portfolio Whole Loan": The EZ Storage Portfolio Loan
together with the EZ Storage Portfolio Loan Note A-2. References herein to EZ
Storage Portfolio Whole Loan shall be construed to refer to the aggregate
indebtedness under the EZ Storage Portfolio Loan Note A-1 and the EZ Storage
Portfolio Loan Note A-2.
"Xxxxxx Mae": The Federal National Mortgage Association or any
successor.
"FDIC": The Federal Deposit Insurance Corporation or any successor.
"Final Distribution Date": The final Distribution Date on which any
distributions are to be made on the Certificates as contemplated by Section
9.01.
"Final Recovery Determination": A determination made by the Special
Servicer, in its reasonable, good faith judgment and in accordance with the
Servicing Standard, with respect to any Loan or REO Property (other than a Loan
that is paid in full and other than a Loan or REO Property, as the case may be,
that is repurchased or replaced by the related Mortgage Loan Seller pursuant to
the related Mortgage Loan Purchase and Sale Agreement or purchased by the Master
Servicer, the Special Servicer or any Controlling Class Certificateholder(s)
pursuant to Section 9.01), that there has been a recovery of all related
Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds and other
payments or recoveries that will ultimately be recoverable.
"FIRREA": The Financial Institutions Reform, Recovery and
Enforcement Act of 1989 (as amended).
"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 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, 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 Notional Amount": With respect to the Class XC
Certificates, the initial Class XC Notional Amount thereof as of the Closing
Date is equal to $2,462,208,204 and with respect to the Class XP Certificates,
the initial Class XP Notional Amount thereof as of the Closing Date is equal to
$2,400,433,000.
"Initial Class Principal Balance": With respect to any Class of
Principal Pay Certificates, the initial Class Principal Balance thereof as of
the Closing Date, in each case as set forth in the Preliminary Statement hereto.
"Initial Pool Balance": The aggregate Cut-off Date Balance of all
the Mortgage Loans included in the Trust Fund as of the Closing Date.
"Initial Purchaser": Each of Banc of America Securities LLC and
Bear, Xxxxxxx & Co. Inc.
"Initial Resolution Period": As defined in Section 2.03.
"Institutional Accredited Investor": As defined in Section 5.02(b).
"Insurance Policy": With respect to any Loan or 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 EZ Storage Portfolio Loan
Intercreditor Agreement or the Chicago Loop Portfolio Intercreditor Agreement,
as applicable.
"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 Deposit Amount": The amount of interest that would have
accrued at the related Mortgage Rate on the Stated Principal Balance of such
Mortgage Loan as of December 1, 2006 had such Mortgage Loan been originated on
November 1, 2006, for the period from and including November 1, 2006 to but
excluding December 1, 2006. With respect to each applicable Mortgage Loan, the
related Loan Number from the Mortgage Loan Schedule and the amount of the
related interest deposit are as follows:
o Loan Number 3403489, $705,888.13.
o Loan Number 3402307, $476,415.04.
"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, as Master Servicer, 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 2006-6, Interest Reserve Account".
"Interested Person": The Depositor, each Mortgage Loan Seller, the
Master Servicer, any Sub-Servicer, the Special Servicer, the Trustee, any Holder
of a Certificate or any Affiliate of any such Person.
"Investment Account": As defined in Section 3.06(a).
"Investment Grade Sequential Pay Certificates": The Class A, Class
B, Class C, Class D, Class E, Class F, Class G and Class H Certificates.
"Investment Representation Letter": As defined in Section 5.02(b).
"IRS": The Internal Revenue Service or any successor.
"Late Collections": With respect to any Loan, all amounts received
thereon during any Collection Period, whether as payments, Insurance Proceeds,
Condemnation Proceeds, Liquidation Proceeds or otherwise, that represent late
collections of the principal and/or interest portions of a Monthly Payment
(other than a Balloon Payment) or an Assumed Monthly Payment in respect of such
Loan due or deemed due, as the case may be, for a Due Date in a previous
Collection Period, or for a Due Date coinciding with or preceding the Cut-off
Date, and not previously received or recovered. With respect to any REO Loan,
all amounts received in connection with the related REO Property during any
Collection Period, whether as Insurance Proceeds, Condemnation Proceeds,
Liquidation Proceeds, REO Revenues or otherwise, that represent late collections
of the principal and/or interest portions of a Monthly Payment (other than a
Balloon Payment) or an Assumed Monthly Payment in respect of the related Loan or
of an Assumed Monthly Payment in respect of such REO Loan due or deemed due, as
the case may be, for a Due Date in a previous Collection Period and not
previously received or recovered.
"Letter of Credit": With respect to any Loan, any third-party letter
of credit delivered by or at the direction of the Mortgagor pursuant to the
terms of such Loan in lieu of the establishment of, or deposit otherwise
required to be made into, a Reserve Fund.
"Liquidation Event": With respect to any Loan, any of the following
events: (i) such Loan is paid in full; (ii) a Final Recovery Determination is
made with respect to such Loan; (iii) the related Mortgage Loan (or related REO
Loan) is repurchased by the related 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 or an
assignee of such Person pursuant to Section 3.18(c) or the related Mezzanine
Loan Holder (if the related Defaulted Loan has a related Mezzanine Loan)
pursuant to any Mezzanine Intercreditor Agreement; or (v) such Loan is purchased
by the Special Servicer or the Master Servicer pursuant to Section 9.01. With
respect to any REO Property (and the related REO Loan), any of the following
events: (i) a Final Recovery Determination is made with respect to such REO
Property or (ii) such REO Property is purchased by the Master Servicer or the
Special Servicer pursuant to Section 9.01.
"Liquidation Expenses": All customary, reasonable and necessary
"out-of-pocket" costs and expenses due and owing (but not otherwise covered by
Servicing Advances) in connection with the liquidation of any Specially Serviced
Loan or REO Property pursuant to Section 3.09 or Section 3.18 (including,
without limitation, legal fees and expenses, committee or referee fees and, if
applicable, brokerage commissions and conveyance taxes).
"Liquidation Fee": With respect to each Specially Serviced Loan 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 Loan by the Majority
Certificateholder of the Controlling Class pursuant to any applicable purchase
right set forth in Section 3.18(c) or Section 3.18 (l) or with respect to a
purchase of a related Defaulted 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 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
Special Servicer has initially determined the fair value of the related Mortgage
Loan; (c) the purchase option of the Majority Certificateholder of the
Controlling Class, the Master Servicer or the Special Servicer pursuant to
Section 9.01; (d) the repurchase by the related Mortgage Loan Seller of a
Mortgage Loan so required to be repurchased by it pursuant to Section 4 of the
related Mortgage Loan Purchase and Sale Agreement and Section 2.03 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 related Mortgage Loan Seller was first
notified of its obligation to repurchase pursuant to Section 4 of the related
Mortgage Loan Purchase and Sale Agreement and Section 2.03, provided such
purchase occurs within 90 days after the date that the related Mortgage Loan
Seller was first notified of its right to repurchase such Loan pursuant to
Section 3.18(p) or 3.18(q), as applicable; or (e) in connection with a Loss of
Value Payment by the related 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
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 Loan by any
Controlling Class Certificateholder(s) pursuant to Section 3.18(c), by the
Special Servicer pursuant to Section 3.18(c) or by the related Mezzanine Loan
Holder pursuant to the related Mezzanine Intercreditor Agreement; (iv) the
repurchase of a Mortgage Loan by the related Mortgage Loan Seller pursuant to
the related Mortgage Loan Purchase and Sale Agreement by the seller thereof
pursuant to any loan purchase agreement; (v) the substitution of one or more
Replacement Mortgage Loans for a Deleted Mortgage Loan by the related Mortgage
Loan Seller pursuant to the related 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.
"Loan": Any Mortgage Loan or Companion Loan.
"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 Loans with respect thereto.
"Loan Group 1 Available Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Available Distribution Amount
attributable to Loan Group 1.
"Loan Group 1 Principal Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Principal Distribution Amount
attributable to Loan Group 1.
"Loan Group 2": Collectively, all of the Mortgage Loans that are
Group 2 Mortgage Loans and any successor REO Loans with respect thereto.
"Loan Group 2 Available Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Available Distribution Amount
attributable to Loan Group 2.
"Loan Group 2 Principal Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Principal Distribution Amount
attributable to Loan Group 2.
"Lock-Box Agreement": With respect to any Loan, the lock-box
agreement, if any, between the related originator and the Borrower, pursuant to
which an account created pursuant to the related loan documents to receive
revenues therefrom, if any, may have been established.
"Lock-Box Account": With respect to any Lock-Box Agreement, the
account(s) established pursuant to the terms of such agreement.
"Loss of Value Payment": As defined in Section 2.03(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, 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, in no event shall any amounts be included in the
Master Servicer Remittance Amount to the extent that such amounts are payable to
any Companion Loan 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 Loan, the
fee payable to the Master Servicer pursuant to Section 3.11(a) and from which
any Primary Servicing Fee is payable.
"Master Servicing Fee Rate": With respect to (a) each Mortgage Loan
and any related REO Loan, the Administrative Fee Rate specified for each such
Mortgage Loan on the Mortgage Loan Schedule minus the Trustee Fee Rate, and (b)
with respect to any Companion Loan and any related REO Loan, the Master
Servicing Fee Rate shall be the same as the Master Servicing Fee Rate for the
related Mortgage Loan.
"Material Breach": A Breach that materially and adversely affects
the interests of the Certificateholders, or any of them, with respect to the
affected Mortgage Loan, including but not limited to a material and adverse
effect on any of the distributions payable with respect to any of the
Certificates or on the value of such Certificates or such Mortgage Loan.
"Material Document Defect": A Document Defect that materially and
adversely affects the interests of the Certificateholders, or any of them, with
respect to the affected Mortgage Loan, including but not limited to a material
and adverse effect on any of the distributions payable with respect to any of
the Certificates or on the value of such Certificates or such Mortgage Loan.
"MERS": Mortgage Electronic Registration Systems, Inc.
"Mezzanine Intercreditor Agreement": With respect to each Mezzanine
Loan, the related intercreditor agreement and, with respect to any Mortgage Loan
with permitted future mezzanine indebtedness, the mezzanine intercreditor
agreement related to such future mezzanine loan.
"Mezzanine Loan": Collectively, the mezzanine loan related to Loan
No. 3403489, the mezzanine loan related to Loan No. 47225, the mezzanine loan
related to Loan No. 3402270, the mezzanine loan related to Loan No. 3402271, the
mezzanine loan related to the Loan No. 3402283, the mezzanine loan related to
Loan No. 3402273, the mezzanine loan related to Loan No. 3402275, the mezzanine
loan related to Loan No. 3402276 and the mezzanine loan related to Loan No.
3402282 (each such Mortgage Loan name and number as set forth in the Mortgage
Loan Schedule) and, with respect to any Mortgage Loan with permitted future
mezzanine indebtedness, such future mezzanine loan.
"Mezzanine Loan Holder": With respect to each Mezzanine Loan, the
related holder of such Mezzanine Loan and, with respect to any Mortgage Loan
with permitted future mezzanine indebtedness, the mezzanine lender under such
future mezzanine loan.
"Modified Loan": Any Loan as to which any Servicing Transfer Event
has occurred and that has been modified by the Special Servicer pursuant to
Section 3.20 in a manner that:
(a) affects the amount or timing of any payment of principal or
interest due thereon (other than, or in addition to, bringing current
Monthly Payments with respect to such Loan);
(b) except as expressly contemplated by the related loan documents,
results in a release of the lien of the Mortgage on any material portion
of the related Mortgaged Property without a corresponding Principal
Prepayment in an amount or the delivery of substitute real property
collateral with a fair market value (as is) that is not less than the fair
market value (as is), as determined by an Appraisal delivered to the
Special Servicer (at the expense of the related Mortgagor and upon which
the Special Servicer may conclusively rely), of the property to be
released; or
(c) in the good faith and reasonable judgment of the Special
Servicer, otherwise materially impairs the security for such Loan or
reduces the likelihood of timely payment of amounts due thereon.
"Monthly Payment": With respect to any Loan, for any Due Date as of
which such Loan is outstanding, the scheduled monthly payment (or, in the case
of an ARD Loan after its Anticipated Repayment Date, the minimum required
monthly payment, exclusive of any Excess Interest and any excess cash flow) of
principal and/or interest on such Loan, including, without limitation, a Balloon
Payment, that is actually payable by the related Mortgagor from time to time
under the terms of the related Mortgage Note (as such terms may be changed or
modified in connection with a bankruptcy or similar proceeding involving the
related Mortgagor or a modification, waiver or amendment of such Loan granted or
agreed to by the Master Servicer or Special Servicer pursuant to Section 3.20
and applicable law); provided that the Monthly Payment due in respect of any ARD
Loan after its Anticipated Repayment Date shall not include Excess Interest.
"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 (together with any rider, addendum or amendment thereto)
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, in trust for the
registered holders of Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2006-6,
without recourse" or in blank, and further showing a complete,
unbroken chain of endorsement from the originator (if such
originator is other than the related Mortgage Loan Seller); or
alternatively, if the original executed Mortgage Note has been lost,
a lost note affidavit and indemnity from the related Mortgage Loan
Seller with a copy of such Mortgage Note, and (B) in the case of a
Companion Loan, a copy of the related executed Mortgage Note;
(ii) an original or a copy of the Mortgage and any intervening
assignments that precede the assignment referred to in clause (iv)
of this definition, in each case (unless the particular item has not
been returned from the applicable recording office) with evidence of
recording indicated thereon;
(iii) an original or a copy of any related Assignment of
Leases (if such item is a document separate from the Mortgage) and
of any intervening assignments thereof that precede the assignment
referred to in clause (v) of this definition, in each case (unless
the particular item has not been returned from the applicable
recording office) with evidence of recording indicated thereon;
(iv) subject to the provisos at the end of this paragraph, an
original executed assignment of the Mortgage in favor of "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 2006-6" or in blank, in recordable
form (except for any missing recording information with respect to
such Mortgage) and in the case of each Whole Loan, an original
executed assignment of the Mortgage also to Xxxxx Fargo Bank, N.A.
in its capacity as "lead lender" on behalf of the Companion Loan
Holder, 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, in trust for the
registered holders of Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2006-6" or in
blank, in recordable form (except for any missing recording
information with respect to such Assignment of Leases) and in the
case of each Whole Loan, also to Xxxxx Fargo Bank, N.A. in its
capacity as "lead lender" or on behalf of the Companion Loan Holder,
provided that if the related Mortgage has been recorded in the name
of MERS or its designee, no assignment of Assignment of Leases in
favor of the Trustee will be required to be prepared or delivered
and instead, the Master Servicer shall take all actions as are
necessary to cause the Trustee to be shown as, and the Trustee shall
take all actions necessary to confirm that it is shown as, the owner
of the related Mortgage on the records of MERS for purposes of the
system of recording transfers of beneficial ownership of mortgages
maintained by MERS;
(vi) originals or copies of any written assumption,
modification, written assurance and substitution agreements in those
instances where the terms or provisions of the Mortgage or Mortgage
Note have been modified or the Mortgage Loan has been assumed, in
each case (unless the particular item has not been returned from the
applicable recording office) with evidence of recording indicated
thereon if the instrument being modified or assumed is a recordable
document;
(vii) the original or a copy of the policy of lender's title
insurance or, if such policy has not yet been issued, a "marked-up"
pro forma title policy or commitment for title insurance marked as
binding and countersigned by the issuer or its authorized agent
either on its face or by an acknowledged closing instruction or
escrow letter;
(viii) filed copies of any prior UCC Financing Statements in
favor of the originator of such Mortgage Loan or in favor of any
assignee prior to the Trustee (but only to the extent the related
Mortgage Loan Seller had possession of such UCC Financing Statements
prior to the Closing Date) and, in connection with such UCC
Financing Statements, an original UCC-2 or UCC-3, as appropriate, in
favor of "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 2006-6" or in
blank, in a form that is complete and suitable for filing or
recording, and sufficient to assign to the Trustee the security
interest held by the originator of the Mortgage Loan or its
assignee; provided, if the related Mortgage Loan has been recorded
in the name of MERS or its designee, no UCC Financing Statement in
favor of the Trustee will be required to be prepared or delivered
and instead, the Master Servicer shall take all actions as are
necessary to cause the Trustee, on behalf of the Certificateholders,
to be shown as, and the Trustee shall take all actions necessary to
confirm that it is shown as, the owner of the related Mortgage on
the records of MERS for purposes of the system of recording
transfers of beneficial ownership of mortgages maintained by MERS;
(ix) the original or a copy of any environmental indemnity
agreement relating solely to such Mortgage Loan;
(x) the original or a copy of any power of attorney, guaranty,
loan agreement, Ground Lease and/or Ground Lease estoppels relating
to such Mortgage Loan;
(xi) any original documents (including any security
agreement(s)) relating to, evidencing or constituting Additional
Collateral and, if applicable, the originals or copies of any
intervening assignments thereof;
(xii) the original or a copy of any intercreditor agreement,
co-lender agreement, agreement among noteholders or similar
agreement relating to such Mortgage Loan and a copy of any Letter of
Credit;
(xiii) with respect to any Companion Loan, a copy of the
related Note;
(xiv) with respect to hospitality properties, a copy of the
franchise agreement, an original copy of the comfort letter and any
transfer documents with respect to such comfort letter, if any; and
(xv) a list attached to each Mortgage File indicating the
documents to be included in each such Mortgage File (the "Mortgage
Loan Checklist") which list may be modified within 180 days by the
related Mortgage Loan Seller after the Closing Date to correct any
errors in accordance with Section 2.02(e);
provided that whenever the term "Mortgage File" is used to refer to documents
actually received by the Trustee or by a Custodian on its behalf such term shall
not be deemed to include such documents and instruments required to be included
therein unless they are actually so received; provided, further, however, that
on the Closing Date, with respect to item (iv), the Depositor has delivered to
the Trustee a copy of such assignment of Mortgage in blank and has caused the
Master Servicer to retain the completed assignment of Mortgage for recording as
described below, unless such Mortgage has been recorded in the name of MERS or
its designee.
"Mortgage Loan": Each of the mortgage loans transferred and assigned
to the Trustee pursuant to Section 2.01 and from time to time held in the Trust
Fund. As used herein, the term "Mortgage Loan" includes the related Mortgage
Note, Mortgage and other security documents contained in the related Mortgage
File.
"Mortgage Loan Checklist": As defined in the definition of Mortgage
File.
"Mortgage Loan Purchase and Sale Agreement": Each of the mortgage
loan purchase and sale agreements dated as of November 1, 2006: (A) between Bank
of America and the Depositor; and (B) between Bear Xxxxxxx 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 and control 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 Sellers": Bank of America and Bear Xxxxxxx.
"Mortgage Note": The original executed note evidencing the
indebtedness of a Mortgagor under a Loan, together with any rider, addendum or
amendment thereto.
"Mortgage Pool": Collectively, all of the Mortgage Loans and any
successor REO Loans. The Mortgage Pool does not include any Companion Loan or
any related REO Loan.
"Mortgage Rate": With respect to (i) any Loan on or prior to its
Stated Maturity Date, the annualized rate at which interest is scheduled (in the
absence of a default) to accrue on such Loan from time to time in accordance
with the terms of the related Mortgage Note (as such may be modified at any time
following the Closing Date) and applicable law, (ii) any Loan after its Stated
Maturity Date, the annualized rate described in clause (i) of this definition
determined without regard to the passage of such Stated Maturity Date, and (iii)
any REO Loan, the annualized rate described in clause (i) or (ii) of this
definition, 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 Loan or REO 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
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, in the case of a Whole
Loan, the related Companion Loan Holder, to the extent of its interest),
including any lease renewed, modified or extended on behalf of the Trust, if the
Trust has the right to renegotiate the terms of such lease.
"Non-Investment Grade Sequential Pay Certificates": The Class J,
Class K, Class L, Class M, Class N, Class O and Class P Certificates.
"Non-Registered Certificate": Unless and until registered under the
Securities Act, any Class XC, 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 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 Loan or REO Property that, as determined by
the Master Servicer or, if applicable, the Special Servicer or the Trustee in
its reasonable and good faith judgment, will not be recoverable (together with
Advance Interest accrued thereon), or that in fact was not ultimately recovered,
from Default Charges, Insurance Proceeds, Liquidation Proceeds or any other
recovery on or in respect of such Loan or REO Property (without giving effect to
potential recoveries on deficiency judgments or recoveries from guarantors);
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 a Mortgage Loan
Seller, as the case may be.
"Opinion of Counsel": A written opinion of counsel (who must, in
connection with any opinion rendered pursuant hereto with respect to tax matters
or a resignation under Section 6.04, be Independent counsel, but who otherwise
may be salaried counsel for the Depositor, the Trustee, the REMIC Administrator,
the Master Servicer or the Special Servicer), which written opinion is
acceptable and delivered to the addressee(s).
"Option Holder": As defined in Section 3.18(c).
"Option Period": As defined in Section 3.18(c).
"Option Price": As defined in Section 3.18(c).
"OTS": The Office of Thrift Supervision or any successor thereto.
"Ownership Interest": As to any Certificate, any ownership or
security interest in such Certificate as the Holder thereof and any other
interest therein, whether direct or indirect, legal or beneficial, as owner or
as pledgee.
"P&I Advance": As to any Loan or REO Loan, any advance made by the
Master Servicer or the Trustee pursuant to Section 4.03.
"Pass-Through Rate": With respect to any Class of Sequential Pay
Certificates, the rate per annum specified as such in respect of such Class of
Certificates in the Preliminary Statement hereto. With respect to the Class XC
and Class XP Certificates, for any Distribution Date, the Class XC Pass-Through
Rate and the Class XP Pass-Through Rate, respectively.
"Past Grace Period Loan": With respect to any Master Servicer
Remittance Date, any Loan having any Monthly Payment remaining unpaid past its
Due Date and past any applicable grace period for such Monthly Payment as of the
Determination Date on the same calendar month.
"Payment Priority": With respect to any Class of Certificates (other
than the Class 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, to the respective Classes of Senior Certificates;
second, to the Class A-M Certificates; third, to the Class A-J Certificates;
fourth, to the Class B Certificates; fifth, to the Class C Certificates; sixth,
to the Class D Certificates; seventh, to the Class E Certificates; eighth, to
the Class F Certificates; ninth, to the Class G Certificates; tenth, to the
Class H Certificates; eleventh, to the Class J Certificates; twelfth, to the
Class K Certificates; thirteenth, to the Class L Certificates; fourteenth, to
the Class M Certificates; fifteenth, to the Class N Certificates; sixteenth, to
the Class O Certificates; seventeenth, to the Class P Certificates; and last,
the respective Classes of Residual Certificates.
"Percentage Interest": With respect to any REMIC II Regular
Certificate, the portion of the relevant Class evidenced by such Certificate,
expressed as a percentage, the numerator of which is the Certificate Principal
Balance or Certificate Notional Amount, as the case may be, of such Certificate
as of the Closing Date, as specified on the face thereof, and the denominator of
which is the Initial Class Principal Balance or Initial Class Notional Amount,
as the case may be, of the relevant Class. With respect to a Class V Certificate
or a Residual Certificate, the percentage interest in distributions to be made
with respect to the relevant Class, as stated on the face of such Certificate.
"Performance Certification": As defined in Section 11.06.
"Performing Loan": As of any date of determination, any Loan as to
which no Servicing Transfer Event then exists.
"Performing Party": As defined in Section 11.12.
"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) of this definition, provided that the long-term unsecured debt
obligations of the party agreeing to repurchase such obligations are rated
"Aaa" by Moody's and "AAA" by S&P;
(c) federal funds, uncertificated certificates of deposit, time
deposits and bankers' acceptances (having original maturities of not more
than 365 days) of any bank or trust company organized under the laws of
the United States or any state, provided that the short-term unsecured
debt obligations of such bank or trust company are rated no less than
"P-1" by Moody's and "A-1+" by S&P;
(d) commercial paper (having original maturities of not more than
365 days) of any corporation incorporated under the laws of the United
States or any state thereof rated no less than "P-1" by Moody's, and
"A-1+" by S&P;
(e) units of money market funds that maintain a constant asset value
and that are rated in the highest applicable rating category by each of
S&P (i.e., "AAAm" or "AAAmG") and Moody's (or if not rated by Moody's a
confirmation from Moody's that such money market fund is acceptable);
(f) the Xxxxx Fargo Prime Investment Money Market Fund so long as it
is rated by each Rating Agency in its highest money market fund ratings
category (or, if not rated by Moody's or S&P, otherwise acceptable to
Moody's or S&P, as applicable, as confirmed in writing that such
investment would not, in and of itself, result in a downgrade,
qualification or withdrawal of the then current ratings assigned to the
Certificates); and
(g) 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, 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, 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,
each investment described hereunder shall be a "cash flow investment", as
defined in the REMIC Provisions; and provided, further, no investment described
hereunder shall have a maturity in excess of one year; and provided, further, no
investment described hereunder shall be liquidated prior to its maturity date;
and provided, further, no investment described hereunder may have an "r"
highlighter or other comparable qualifier attached to its rating.
"Permitted Mezzanine Loan Holder": With respect to the Mezzanine
Loans, any "qualified transferee" with respect to which each Rating Agency has
confirmed in writing that the holding of the related Mezzanine Loan by such
Person would not cause a qualification, downgrade or withdrawal of any of such
Rating Agency's then-current ratings on the Certificates or that otherwise meets
the qualifications set forth in the related Mezzanine Intercreditor Agreement to
be a "qualified transferee".
"Permitted Transferee": Any Transferee of a Residual Certificate
other than any of a Plan or a Person acting on behalf of or using the assets of
a Plan, a Disqualified Organization, a Disqualified Non-U.S. Person, an entity
treated as a U.S. partnership for federal income tax purposes if any of its
direct or indirect beneficial owners (other than through a U.S. corporation) is
(or is permitted to be under the related partnership agreement) a Disqualified
Non-U.S. Person or a U.S. Person with respect to whom income on a Residual
Certificate is attributable to a foreign permanent establishment or fixed base,
within the meaning of an applicable income tax treaty, of such Person or any
other U.S. Person or any nominee, agent or middleman of any of the above.
"Person": Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, limited
liability company or government or any agency or political subdivision thereof.
"Phase I Environmental Assessment": A "Phase I assessment" or, in
the case of any Loan having an initial principal balance under $1,000,000, a
transaction screen, as described in, and meeting the criteria of, the American
Society of Testing Materials Standard Sections 1527-99 or any successor thereto
published by the American Society of Testing Materials.
"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 "CWCapital Asset Management LLC, 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 2006-6, REO Account". Any such account or accounts shall be
an Eligible Account.
"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 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 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 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 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 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 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
Massachusetts.
"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
November 20, 2006, relating to the Class X-0, Xxxxx X-0, Class A-3, Class A-SB,
Class A-4, Class A-1A, Class XP, 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 Loan as of the date of purchase,
together with (a) all accrued and unpaid interest (excluding, in the case of an
ARD Loan after its Anticipated Repayment Date, Excess Interest) on such REO Loan
at the related Mortgage Rate to but not including the Due Date in the Collection
Period of purchase, (b) all related Master Servicing Fees, Special Servicing
Fees, Trustee Fees and 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 related Mortgage Loan Purchase and Sale Agreement; (ix) has a
Phase I Environmental Assessment and a property condition report relating to the
related Mortgaged Property in its Servicing File, which Phase I Environmental
Assessment will evidence that there is no material adverse environmental
condition or circumstance at the related Mortgaged Property for which further
remedial action may be required under applicable law, and which property
condition report will evidence that the related Mortgaged Property is in good
condition with no material damage or deferred maintenance; and (x) constitutes a
"qualified replacement mortgage" within the meaning of Section 860G(a)(4) of the
Code; provided, however, that if more than one mortgage loan is to be
substituted for any Defective Mortgage Loan, then all such proposed Replacement
Mortgage Loans shall, in the aggregate, satisfy the requirement specified in
clause (i) of this definition and each such proposed Replacement Mortgage Loan
shall, individually, satisfy each of the requirements specified in clauses (ii)
through (x) of this definition; and provided, further, no mortgage loan shall be
substituted for a Defective Mortgage Loan unless (x) such prospective
Replacement Mortgage Loan shall be acceptable to the Directing Certificateholder
(or, if there is no Directing Certificateholder then serving, to the Holders of
Certificates representing a majority of the Voting Rights allocated to the
Controlling Class), in its (or their) sole discretion, and (y) each Rating
Agency shall have confirmed in writing to the Trustee that such substitution
will not in and of itself result in an Adverse Rating Event with respect to any
Class of Rated Certificates (such written confirmation to be obtained by, and at
the expense of, the related Mortgage Loan Seller effecting the substitution).
"Rated Certificate": Any of the Certificates to which a rating has
been assigned by either Rating Agency at the request of the Depositor.
"Rated Final Distribution Date": As to each Class of Certificates,
the Distribution Date in October 2045.
"Rating Agency": Each of Moody's and S&P, or their successors in
interest.
"Realized Loss": With respect to each Defaulted Loan as to which a
Final Recovery Determination has been made, or with respect to any related REO
Loan as to which a Final Recovery Determination has been made as to the related
REO Property, an amount (not less than zero) equal to (i) the unpaid principal
balance of such Loan or REO Loan, as the case may be, as of the Due Date related
to the Collection Period in which the Final Recovery Determination was made,
plus (ii) all accrued but unpaid interest on such Loan or REO Loan, as the case
may be, at the related Mortgage Rate to but not including the Due Date related
to the Collection Period in which the Final Recovery Determination was made,
plus (iii) any related unreimbursed Servicing Advances as of the commencement of
the Collection Period in which the Final Recovery Determination was made,
together with any new related Servicing Advances made during such Collection
Period, minus (iv) all payments and proceeds, if any, received in respect of
such Collection Period related to the Loan or REO Loan, as the case may be,
during the Collection Period in which such Final Recovery Determination was made
(net of any related Liquidation Expenses paid therefrom).
With respect to any Loan as to which any portion of the outstanding
principal or accrued interest owed thereunder was forgiven in connection with a
bankruptcy or similar proceeding involving the related Mortgagor or a
modification, waiver or amendment of such Loan granted or agreed to by the
Master Servicer or Special Servicer pursuant to Section 3.20, the amount of such
principal or past due interest (other than any Default Interest) so forgiven.
With respect to any Loan as to which the Mortgage Rate thereon has
been permanently reduced and not recaptured for any period in connection with a
bankruptcy or similar proceeding involving the related Mortgagor or a
modification, waiver or amendment of such Loan granted or agreed to by the
Master Servicer or Special Servicer pursuant to Section 3.20, the amount of the
consequent reduction, if any, in the interest portion of each successive Monthly
Payment due thereon. Each such Realized Loss shall be deemed to have been
incurred on the Due Date for each affected Monthly Payment.
With respect to any Whole Loan, Realized Losses shall be deemed
allocated pro rata between the Mortgage Loan and Companion Loan in accordance
with the related Intercreditor Agreement and the portion allocable to the
Mortgage Loan shall be further allocated to the Certificates as provided in this
Agreement.
"Record Date": With respect to each Class of Certificates, for any
Distribution Date, the last Business Day of the calendar month immediately
preceding the month in which such Distribution Date occurs.
"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. 1506 - 1631 (Jan. 7, 2005)) or
by the staff of the Commission, 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 related 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 Agreements (and Section 23 of the Mortgage Loan Purchase and
Sale Agreement between Bank of America and the Depositor), (v) the Interest
Deposit Amounts, and (vi) such amounts on or with respect to clauses (i), or
(ii) of this definition as from time to time are deposited into the Distribution
Account, the Certificate Account, the Interest Reserve Account and the REO
Account (if established) and the Excess Liquidation Proceeds Account (if
established), and in the case of a Whole Loan, to the extent of the Trust's
interest in each of the foregoing.
"REMIC I Distribution Account": The segregated account or accounts
created and maintained as a separate trust account or accounts by the Trustee
pursuant to Section 3.04, which shall be entitled "Xxxxx Fargo Bank, N.A., as
Trustee, in trust for Holders of Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2006-6, REMIC I
Distribution Account" and which account shall be an Eligible Account and a
sub-account of the Distribution Account.
"REMIC I Principal Balance": The principal amount of any REMIC I
Regular Interest outstanding as of any date of determination. As of the Closing
Date, the REMIC I Principal Balance of each REMIC I Regular Interest shall equal
the initial REMIC I Principal Balance as set forth in the Preliminary Statement
hereto. On each Distribution Date, the REMIC I Principal Balance of each REMIC I
Regular Interest shall be permanently reduced by all distributions of principal
deemed to have been made in respect of such REMIC I Regular Interest on such
Distribution Date pursuant to Section 4.01(a), and shall be further permanently
reduced on such Distribution Date by all Realized Losses and Additional Trust
Fund Expenses deemed to have been allocated thereto on such Distribution Date
pursuant to Section 4.04(b).
"REMIC I Regular Interest": Any of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and designated as a
"regular interest" in REMIC I, as described in the Preliminary Statement hereto.
"REMIC I Remittance Rate": With respect to any REMIC I Regular
Interest for any Distribution Date, the Weighted Average Adjusted Net Mortgage
Rate.
"REMIC II": A segregated pool of assets subject hereto and to be
administered hereunder, and consisting of all of the REMIC I Regular Interests
and amounts distributed thereon as from time to time are held in the REMIC II
Distribution Account.
"REMIC II Certificate": Any Certificate, other than a Class 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 2006-6, REMIC II
Distribution Account" and which account shall be an Eligible Account and a
sub-account of the Distribution Account.
"REMIC II Regular Certificate": Any REMIC II Certificate, other than
a Class R-II Certificate.
"REMIC Provisions": Provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Sections
860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and temporary and final Treasury regulations (or proposed
regulations that would apply by reason of their proposed effective date to the
extent not inconsistent with temporary or final regulations) and any rulings
promulgated thereunder, as the foregoing may be in effect from time to time.
"Rents from Real Property": With respect to any REO Property, gross
income of the character described in Section 856(d) of the Code, which income,
subject to the terms and conditions of that Section of the Code in its present
form, does not include:
(a) except as provided in Section 856(d)(4) or (6) of the Code, any
amount received or accrued, directly or indirectly, with respect to such
REO Property, if the determination of such amount depends in whole or in
part on the income or profits derived by any Person from such property
(unless such amount is a fixed percentage or percentages of receipts or
sales and otherwise constitutes Rents from Real Property);
(b) any amount received or accrued, directly or indirectly, from any
Person if the Trust Fund owns directly or indirectly (including by
attribution) a ten percent or greater interest in such Person determined
in accordance with Sections 856(d)(2)(B) and (d)(5) of the Code;
(c) any amount received or accrued, directly or indirectly, with
respect to such REO Property if any Person Directly Operates such REO
Property;
(d) any amount charged for services that are not customarily
furnished in connection with the rental of property to tenants in
buildings of a similar class in the same geographic market as such REO
Property within the meaning of Treasury Regulations Section 1.856-4(b)(1)
(whether or not such charges are separately stated); and
(e) rent attributable to personal property unless such personal
property is leased under, or in connection with, the lease of such REO
Property and, for any taxable year of the Trust Fund, such rent is no
greater than 15 percent of the total rent received or accrued under, or in
connection with, the lease.
"REO Account": The Pool REO Account and/or a Whole Loan REO Account,
as applicable.
"REO Acquisition": The acquisition of an REO Property for federal
income tax purposes pursuant to Treasury Regulations Section 1.856-6.
"REO Disposition": The sale or other disposition of the REO Property
pursuant to Section 3.18.
"REO Extension": As defined in Section 3.16(a).
"REO Loan": The mortgage loan(s) deemed for purposes hereof to be
outstanding with respect to each REO Property acquired in respect of any Loan.
Each REO Loan shall be deemed to have an initial unpaid principal balance and
Stated Principal Balance equal to the unpaid principal balance and Stated
Principal Balance, respectively, of the predecessor Loan as of the date of the
related REO Acquisition. In addition, all Monthly Payments (other than any
Balloon Payment), Assumed Monthly Payments (in the case of a Balloon Loan
delinquent in respect of its Balloon Payment) and other amounts due and owing,
or deemed to be due and owing, in respect of the predecessor Loan as of the date
of the related REO Acquisition, shall be deemed to continue to be due and owing
in respect of an REO Loan. In addition, Nonrecoverable Advances (including
interest on such Nonrecoverable Advances) and Workout-Delayed Reimbursement
Amounts with respect to such REO Loan that were reimbursed from collections on
the Loans and resulted in principal distributed to the Certificateholders being
reduced as a result of the first proviso of the definition of "Principal
Distribution Amount", shall be deemed outstanding until recovered or until a
Final Recovery Determination is made. All amounts payable or reimbursable to the
Master Servicer, the Special Servicer and/or the Trustee in respect of the
related Loan as of the date of the related REO Acquisition, including, without
limitation, any unpaid Servicing Fees and any unreimbursed Advances, together
with any Advance Interest accrued and payable to the Master Servicer, the
Special Servicer 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 Loan. If the Loans
comprising EZ Storage Portfolio Loan become REO Loans, amounts received by the
Trust with respect to such REO Loans shall be applied to amounts due and owing
in respect of such REO Loans as provided in Section 1 of the EZ Storage
Portfolio Loan Intercreditor Agreement. If the Loans comprising Chicago Loop
Portfolio Loan become REO Loans, amounts received by the Trust with respect to
such REO Loans shall be applied to amounts due and owing in respect of such REO
Loans as provided in Section 1 of the Chicago Loop Portfolio Loan Intercreditor
Agreement. Collections in respect of each REO Loan (exclusive of the amounts to
be applied to the payment of, or to be reimbursed to the Master Servicer or the
Special Servicer for the payment of, Servicing Fees, Special Servicing Fees,
Additional Master Servicing Compensation, Additional Special Servicing
Compensation, Liquidation Fees, the costs of operating, managing, selling,
leasing and maintaining the related REO Property) shall be treated: first, as a
recovery of Nonrecoverable Advances (including interest on such Nonrecoverable
Advance) and Workout-Delayed Reimbursed Amounts with respect to such REO Loan,
that were reimbursed from collections on the Loans and resulted in principal
distributed to the Certificateholders being reduced as a result of the first
proviso of the definition of "Principal Distribution Amount"; second, as a
recovery of accrued and unpaid interest on such REO Loan at the related Mortgage
Rate in effect from time to time to but not including the Due Date in the
Collection Period of receipt; third, as a recovery of principal of such REO Loan
to the extent of its entire unpaid principal balance; fourth, in accordance with
the Servicing Standard of the Master Servicer or the Special Servicer, as
applicable, as a recovery of any other amounts due and owing in respect of such
REO Loan; fifth, as a recovery of any other amounts deemed to be due and owing
in respect of the related REO Loan (other than, in the case of an REO Loan that
relates to an ARD Loan after its Anticipated Repayment Date, accrued and unpaid
Excess Interest); and sixth, in the case of an REO Loan that relates to an ARD
Loan after its Anticipated Repayment Date, as a recovery of any accrued and
unpaid Excess Interest on such REO Loan to but not including the date of receipt
by or on behalf of the Trust, in that order.
"REO Property": A Mortgaged Property acquired by the Special
Servicer on behalf of the Trustee for the benefit of the Certificateholders
(and, in the case of a related Mortgaged Property securing a Whole Loan, for the
benefit of the Certificateholders and the Companion Loan 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 any Companion Loan 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.
"Replacement Mortgage Loan" Any mortgage loan that is substituted by
the related Mortgage Loan Seller for a Defective Mortgage Loan as contemplated
by Section 2.03.
"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 Loan": As defined in Section 3.19(b).
"Required Claims-Paying Ratings": With respect to any insurance
carrier, claims-paying ability ratings at least equal to the following minimum
ratings assigned to such carrier by at least one of the other following parties
and, in any event, by each Rating Agency that assigned a rating to the
claims-paying ability of such insurance carrier: Moody's ("A2" or better), S&P
("A" or better) and A.M. Best ("A: VIII" or better) or any insurance carrier
backed or guaranteed by an insurer with such required ratings; provided,
however, that a rating by A.M. Best shall be disregarded and shall not be
applicable as one of the two required ratings except with respect to a fidelity
bond or errors and omissions insurance maintained by a Sub-Servicer and then
only to the extent in force as of the Closing Date. Notwithstanding the
preceding sentence, an insurance carrier with lower or fewer claims-paying
ability ratings shall be deemed to have the "Required Claims-Paying Ratings" if
the applicable Rating Agency has confirmed in writing that such insurance
carrier shall not result, in and of itself, in a downgrading, withdrawal or
qualification (if applicable) of the then current rating assigned by such Rating
Agency to any Class of Certificates unless, with respect to policies maintained
by borrowers, a higher claims-paying ability rating is required under any of the
loan documents.
"Reserve Account": The account or accounts created and maintained
pursuant to Section 3.03(d).
"Reserve Funds": With respect to any Loan, any amounts delivered by
the related Mortgagor (and not previously disbursed) to be held in escrow by or
on behalf of the mortgagee representing reserves for principal and interest
payments, repairs, replacements, capital improvements (including, without
limitation, tenant improvements and leasing commissions), and/or environmental
testing and remediation with respect to the related Mortgaged Property.
"Residual Certificate": Any Class R-I or Class R-II Certificate.
"Resolution Extension Period": 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 related 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 related 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 related 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 related Mortgage Loan Seller shall have an
additional 90 days to cure such Material Document Defect or Material Breach,
provided that such Mortgage Loan Seller has commenced and is diligently
proceeding with the cure of such Material Document Defect or Material Breach and
such failure to cure is solely the result of a delay in the return of documents
from the local filing or recording authorities.
"Responsible Officer": When used with respect to the Trustee, any
officer assigned to the Corporate Trust Office, 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(a).
"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 X-0, Xxxxx X-0, Class
A-SB, Class A-4, Class A-1A, Class XC or Class XP Certificate.
"Senior Principal Distribution Cross Over Date": The first
Distribution Date as of which the aggregate Class Principal Balance of the Class
A-1, Class X-0, Xxxxx X-0, Class A-SB, 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-SB, 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.
"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 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 Loan
after a default, delinquency or other unanticipated event, or in connection with
the administration of any REO Property, including, but not limited to, the cost
of (a) compliance with the obligations of the Master Servicer set forth in
Sections 3.03(c) and 3.09, (b) the preservation, insurance, restoration,
protection and management of a Mortgaged Property, (c) obtaining any Liquidation
Proceeds or Insurance Proceeds in respect of any Loan or REO Property, (d) any
enforcement or judicial proceedings with respect to a Mortgaged Property,
including, without limitation, foreclosures, and (e) the operation, management,
maintenance and liquidation of any REO Property; provided that notwithstanding
anything herein to the contrary, "Servicing Advances" shall not include
allocable overhead of the Master Servicer or the Special Servicer (or the
Trustee, if applicable), such as costs for office space, office equipment,
supplies and related expenses, employee salaries and related expenses and
similar internal costs and expenses, or costs incurred by either such party in
connection with its purchase of any Loan or REO Property pursuant to any
provision of this Agreement. All Emergency Advances made by the Master Servicer
at the direction of the Special Servicer hereunder shall be considered
"Servicing Advances" for the purposes hereof.
"Servicing 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 Loan and REO Loan, the Master
Servicing Fee and the Special Servicing Fee.
"Servicing File": Any documents (other than documents required to be
part of the related Mortgage File), including, without limitation, the related
Phase I Environmental Site Assessment and any related environmental insurance or
endorsement, in the possession of the Master Servicer or the Special Servicer
and relating to the origination and servicing of any Mortgage Loan or the
administration of any REO Property.
"Servicing 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 Loan, the
date that servicing thereof is returned by the Special Servicer to the Master
Servicer pursuant to Section 3.21(a).
"Servicing Standard": With respect to each of the Master Servicer
and the Special Servicer subject to applicable law and the express terms of the
relevant Loans and in the case of a Whole Loan, the related Intercreditor
Agreement, to service and administer the Loans and any REO Properties for which
such Person is responsible hereunder: (a) with the same care, skill, prudence
and diligence as is normal and usual in its general mortgage servicing and REO
property management activities on behalf of third parties or on behalf of
itself, whichever is higher, with respect to mortgage loans and REO properties
that are comparable to those for which it is responsible hereunder; (b) with a
view to the timely collection of all scheduled payments of principal and
interest under the Loans, the full collection of all Prepayment Premiums that
may become payable under the Loans and, in the case of the Special Servicer, if
a Loan comes into and continues in default and if, in the good faith and
reasonable judgment of the Special Servicer, no satisfactory arrangements can be
made for the collection of the delinquent payments (including payments of
Prepayment Premiums), the maximization of the recovery on such Loan to the
Certificateholders, and, in the case of a Whole Loan, on behalf of the related
Companion Loan Holder, as a collective whole, on a net present value basis; and
(c) without regard to: (i) any known relationship that the Master Servicer (or
any Affiliate thereof) or the Special Servicer (or any Affiliate thereof), as
the case may be, may have with the related Mortgagor or with any other party to
this Agreement; (ii) the ownership of any Certificate or Companion Loan 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 Loan, any
of the following events:
(a) the related Mortgagor has failed to make when due any Monthly
Payment (including a Balloon Payment) or any other payment required under
the related loan documents, which failure continues, or the Master
Servicer determines, in its reasonable, good faith judgment, will
continue, unremedied (i) except in the case of a delinquent Balloon
Payment, for 60 days beyond the date on which the subject payment was due,
and (ii) solely in the case of a delinquent Balloon Payment and if (x) the
related Borrower is actively seeking a refinancing commitment, (y) the
related Borrower continues to make payments in the amount of its Monthly
Payment, and (z) subject to Section 3.21(f), the Directing
Certificateholder consents, for 60 days beyond the related maturity date
or, if the related Mortgagor has delivered to the Master Servicer, on or
before the 60th day after the related maturity date, a refinancing
commitment reasonably acceptable to the Master Servicer, for such longer
period, not to exceed 120 days beyond the related maturity date, during
which the refinancing would occur; or
(b) the Master Servicer (or the Special Servicer with the consent of
the Directing Certificateholder) has determined, in its reasonable, good
faith judgment, that a default in the making of a Monthly Payment
(including a Balloon Payment) or any other material payment required under
the related loan documents is likely to occur within 30 days and either
(i) the related Mortgagor has requested a material modification of the
payment terms of the Loan or (ii) such default is likely to remain
unremedied for at least the period contemplated by clause (a) of this
definition; or
(c) the Master Servicer (or the Special Servicer with the consent of
the Directing Certificateholder) has determined, in its reasonable, good
faith judgment, that a default, other than as described in clause (a) or
(b) of this definition, has occurred 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 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 any Whole Loan, the
related Mortgage Loan and the related Companion Loan shall be deemed to be a
Specially Serviced Loan if any loan within such Whole Loan becomes a Specially
Serviced Loan.
A Servicing Transfer Event with respect to any Loan shall cease to
exist:
(w) in the case of the circumstances described in clause (a) of this
definition, if and when the related Mortgagor has made three consecutive
full and timely Monthly Payments under the terms of such Loan (as such
terms may be changed or modified in connection with a bankruptcy or
similar proceeding involving the related Mortgagor or by reason of a
modification, waiver or amendment granted or agreed to by the Master
Servicer or the Special Servicer pursuant to Section 3.20);
(x) in the case of the circumstances described in clauses (b), (d),
(e) and (f) of this definition, 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) of this
definition, 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), if and
when such proceedings are terminated;
so long as at that time no circumstance identified in clauses (a) through (g) of
this definition exists that would cause the 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 X Certificate, a 100% Percentage Interest.
"Sole Pooled Certificateholder": Any Holder (or Holders provided
they act in unanimity) holding 100% of the Class X and Non-Investment Grade
Sequential Pay Certificates or an assignment of the voting rights thereof;
provided that the Class Principal Balances, as applicable, of the Investment
Grade Sequential Pay Certificates have been reduced to zero.
"Special Action": As defined in Section 3.21(e).
"Special Servicer": CWCapital Asset Management LLC, a Massachusetts
limited liability company, 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 Loan, the fee designated as such and payable to the Special
Servicer pursuant to the first paragraph of Section 3.11(c).
"Special Servicing Fee Rate": With respect to each Specially
Serviced Loan and each REO Loan, 0.25% (25 basis points) per annum.
"Specially Serviced Loan": Any Loan as to which there then exists a
Servicing Transfer Event. Upon the occurrence of a Servicing Transfer Event with
respect to any Loan, such Loan shall remain a Specially Serviced Loan until the
earliest of (i) its removal from the Trust Fund (in the case of a Mortgage
Loan), (ii) an REO Acquisition with respect to the related Mortgaged Property,
and (iii) the cessation of all existing Servicing Transfer Events with respect
to such Loan.
"Startup Day": With respect to each of REMIC I and REMIC II, the day
designated as such in Section 10.01(c).
"Stated Maturity Date": With respect to any Loan, the Due Date on
which the last payment of principal is due and payable under the terms of the
related Mortgage Note as in effect on the Closing Date, without regard to any
change in or modification of such terms in connection with a bankruptcy or
similar proceeding involving the related Mortgagor or a modification, waiver or
amendment of such Loan granted or agreed to by the Master Servicer or Special
Servicer pursuant to Section 3.20 and, in the case of an ARD Loan, without
regard to its Anticipated Repayment Date.
"Stated Principal Balance": With respect to any Mortgage Loan and
any successor REO Loan, a principal amount initially equal to the Cut-off Date
Balance of such Mortgage Loan, that is permanently reduced on each Distribution
Date (to not less than zero) by (i) all payments (or P&I Advances in lieu
thereof) of, and all other collections allocated as provided in Section 1.03 to,
principal of or with respect to such Mortgage Loan (or successor REO Loan) that
are (or, if they had not been applied to cover any Additional Trust Fund
Expense, would have been) distributed to Certificateholders on such Distribution
Date, and (ii) the principal portion of any Realized Loss incurred in respect of
such Mortgage Loan (or successor REO Loan) during the related Collection Period.
With respect to any Companion Loan (and any successor REO Loan), a principal
amount initially equal to the Cut-off Date Balance of such Companion Loan, that
is permanently reduced (to not less than zero) by (i) all payments (or P&I
Advances in lieu thereof) of, and all other collections allocated as provided in
Section 1.03 to, principal of or with respect to such Companion Loan (or
successor REO Loan) that are (or, if they had not been applied to cover any
Additional Trust Fund Expense, would have been) distributed to the holder of
such Companion Loan, and (ii) the principal portion of any Realized Loss
incurred in respect of such Companion Loan (or successor REO Loan) during the
related Collection Period. Notwithstanding the foregoing, if a Liquidation Event
occurs in respect of any Loan or REO Property, then the "Stated Principal
Balance" of such Loan or of the related REO Loan, as the case may be, shall be
zero commencing as of the Distribution Date in the Collection Period next
following the Collection Period in which such Liquidation Event occurred. In
addition, to the extent that principal from general collections is used to
reimburse Nonrecoverable Advances or Work-out Delayed Reimbursement Amounts, and
such amount has reduced the Principal Distribution Amount, such amount shall not
reduce the Stated Principal Balance prior to a Liquidation Event or other
liquidation or disposition of the related Mortgage Loan or REO Property (other
than for purposes of computing the Weighted Average Adjusted Net Mortgage Rate).
With respect to a Whole Loan, the Stated Principal Balance shall be the sum of
the Stated Principal Balance of the related Mortgage Loan and the Stated
Principal Balance of the related Companion Loan.
"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, 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 the 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 Trust 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 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 Loan
or deemed to be due on such related REO Loan is computed under the terms of the
related Mortgage Note (as such terms may be changed or modified at any time
following the Closing Date) and applicable law, and without giving effect to any
Excess Interest that may accrue on any ARD Loan after its Anticipated Repayment
Date.
"Trustee Fee Rate": A rate of 0.00093% 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 any REMIC I Regular Interest for
any Distribution Date shall be deemed to have accrued during the applicable
Interest Accrual Period.
"Uncertificated Distributable Interest": With respect to any REMIC I
Regular Interest, for any Distribution Date, the Uncertificated Accrued Interest
in respect of such REMIC I Regular Interest for such Distribution Date, reduced
(to not less than zero) by the product of (i) the Net Aggregate Prepayment
Interest Shortfall, if any, for such Distribution Date, multiplied by (ii) a
fraction, the numerator of which is the Uncertificated Accrued Interest in
respect of such REMIC I Regular Interest for such Distribution Date, and the
denominator of which is the aggregate Uncertificated Accrued Interest in respect
of all the REMIC I Regular Interests for such Distribution Date.
"Underwriter": Each of Banc of America Securities LLC, Bear, Xxxxxxx
& Co Inc., Citigroup Global Markets Inc. and Xxxxxx Xxxxxxx & Co. Incorporated
"Underwriting Agreement: The underwriting agreement dated as of
November 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 X Certificates
(allocated, pro rata, between the Class XC and Class XP Certificates based upon
their related Class Notional Amounts). None of the Class V, Class R-I or Class
R-II Certificates will be entitled to any Voting Rights. Voting Rights allocated
to a Class of Certificateholders shall be allocated among such
Certificateholders in proportion to the Percentage Interests evidenced by their
respective Certificates.
"Weighted Average Adjusted Net Mortgage Rate": With respect to any
Distribution Date, the weighted average of the respective Adjusted Net Mortgage
Rates for all the Mortgage Loans and related REO Loans, weighted on the basis of
the respective Stated Principal Balances of such Mortgage Loans and REO Loans
outstanding immediately prior to such Distribution Date.
"Whole Loan": The EZ Storage Portfolio Loan and, if and when the
Chicago Loop Portfolio Future Advance occurs, the Chicago Loop Portfolio Whole
Loan.
"Whole Loan Custodial Account": With respect to a Whole Loan, the
segregated account or accounts created and maintained by the Master Servicer
pursuant to Section 3.04(e) on behalf of the related Whole Loan noteholders,
which shall be entitled "Bank of America, National Association, as Master
Servicer, in trust for the Whole Loan noteholders, as their interests may
appear". Any such account shall at all times be an Eligible Account.
"Whole Loan Remittance Amount": With respect to any Master Servicer
Remittance Date and any Whole Loan, an amount equal to (a) all amounts on
deposit in the related Whole Loan Custodial Account as of the commencement of
business on such Master Servicer Remittance Date, net of (b) any portion of the
amounts described in clause (a) of this definition that represents one or more
of the following: (i) collected Monthly Payments that are due on a Due Date
following the end of the related Collection Period, (ii) any unscheduled
payments of principal (including, without limitation, Principal Prepayments, and
interest, Liquidation Proceeds and Insurance Proceeds received after the end of
the related Collection Period), (iii) any Prepayment Premiums received after the
end of the related Collection Period, (iv) any amounts payable or reimbursable
to any Person from the related Whole Loan Custodial Account pursuant to any of
clauses (ii) through (xvii) of Section 3.05(f), (v) any Excess Liquidation
Proceeds that are unrelated to such Whole Loan, and (vi) any amounts deposited
into the related Whole Loan Custodial Account in error, provided that, with
respect to the Master Servicer Remittance Date that occurs in the same calendar
month as the Final Distribution Date, the Whole Loan Remittance Amount will be
calculated without regard to clauses (b)(i), (b)(ii) and (b)(iii) of this
definition.
"Whole Loan REO Account": As defined in Section 3.16(b).
"Withheld Amounts": As defined in Section 4.05.
"Within Grace Period Loan": With respect to any Master Servicer
Remittance Date, any Loan having any Monthly Payment remaining unpaid past its
Due Date, as of the close of business on the Determination Date in the same
calendar month, but that is not delinquent past the applicable grace period for
such Monthly Payment as of the close of business on such Determination Date.
"Workout-Delayed Reimbursement Amount": With respect to any Loan,
the amount of any Advance made with respect to such Loan on or before the date
such Loan becomes (or, but for the making of three monthly payments under its
modified terms, would then constitute) a Corrected Loan, together with (to the
extent accrued and unpaid) interest on such Advances, to the extent that (i)
such Advance is not reimbursed to the Person who made such Advance on or before
the date, if any, on which such Loan becomes a Corrected Loan and (ii) the
amount of such Advance becomes an obligation of the Mortgagor to pay such amount
under the terms of the modified loan documents. That any amount constitutes all
or a portion of any Workout-Delayed Reimbursement Amount shall not in any manner
limit the right of any Person hereunder to determine that such amount instead
constitutes a Nonrecoverable Advance reimbursable in the same manner as any
other Nonrecoverable Advance.
"Workout Fee": With respect to each Corrected Loan, the fee
designated as such and payable to the Special Servicer pursuant to the second
paragraph of Section 3.11(c).
"Workout Fee Rate": With respect to each Corrected Loan as to which
a Workout Fee is payable, 1.0% (100 basis points).
Section 1.02 Rules of Construction; Other Definitional Provisions.
Unless the context otherwise clearly requires:
(a) the definitions of terms herein shall apply equally to the singular
and plural forms of the terms defined;
(b) whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms;
(c) the words "include", "includes" and "including" shall be deemed to
be followed by the phrase "without limitation";
(d) the word "will" shall be construed to have the same meaning and
effect as the word "shall";
(e) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement,
instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on
such amendments, supplements or modifications set forth herein);
(f) any reference to any Person, or to any Person in a specified
capacity, shall be construed to include such Person's successors and
assigns or such Person's successors in such capacity, as the case
may be;
(g) unless otherwise specified herein, "pro rata" when used in reference
to more than one Class of the Certificates shall mean "pro rata"
based on the outstanding Class Principal Balances of such Classes of
Certificates;
(h) all references in this instrument to designated "Articles",
"Sections", "Subsections", "clauses" and other subdivisions are to
the designated Articles, Sections, Subsections, clauses and other
subdivisions of this Agreement as originally executed; and
(i) the words "herein", "hereof", "hereunder" and other words of similar
import refer to this Agreement as a whole and not to any particular
Article, Section, Subsection or other subdivision.
Section 1.03 Certain Calculations in Respect of the Mortgage Pool.
(a) All amounts collected by or on behalf of the Trust in respect of
any Cross-Collateralized 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 Loan, that were reimbursed from collections on the Mortgage Loans
and resulted in principal distributed to the Certificateholders being reduced as
a result of the first proviso of the definition of "Principal Distribution
Amount"; second, as a recovery of accrued and unpaid interest (excluding, in the
case of an REO Loan that relates to an ARD Loan after its Anticipated Repayment
Date, Excess Interest) on such REO Loan at the related Mortgage Rate in effect
from time to time to but not including the Due Date in the Collection Period of
receipt; third, as a recovery of principal of such REO Loan to the extent of its
entire unpaid principal balance; fourth, in accordance with the Servicing
Standard of the Master Servicer or the Special Servicer, as applicable, as a
recovery of any other amounts due and owing in respect of such REO Loan; fifth,
as a recovery of Default Charges due and owing in respect of such REO Loan;
sixth, as a recovery of any other amounts deemed to be due and owing in respect
of the related REO Loan (other than, in the case of an REO Loan that relates to
an ARD Loan after its Anticipated Repayment Date, accrued and unpaid Excess
Interest) and seventh, in the case of an REO Loan that relates to an ARD Loan
after its Anticipated Repayment Date, as a recovery of any accrued and unpaid
Excess Interest on such REO Loan to but not including the date of receipt by or
on behalf of the Trust, in that order.
(c) For the purposes of calculating distributions pursuant to this
Agreement, Excess Interest on an ARD Loan shall be deemed not to constitute
principal or any portion thereof and shall not be added to the unpaid principal
balance or Stated Principal Balance of such ARD Loan. To the extent any Excess
Interest is not paid on a current basis, it shall be deemed to be deferred
interest. Any reference to the Certificate Principal Balance of any Class of
Certificates on or as of a Distribution Date shall refer to the Certificate
Balance of such Class of Certificates on such Distribution Date after giving
effect to any distributions made on such Distribution Date pursuant to Section
4.01(a).
(d) Insofar as amounts received in respect of any Mortgage Loan or
related REO Property and allocable to shared fees and shared charges owing in
respect of such Mortgage Loan or the related REO Loan, as the case may be, that
constitute Additional Master Servicing Compensation payable to the Master
Servicer and/or Additional Special Servicing Compensation payable to the Special
Servicer, are insufficient to cover the full amount of such fees and charges,
such amounts shall be allocated between such of those fees and charges as are
payable to the Master Servicer, on the one hand, and such of those fees and
charges as are payable to the Special Servicer, on the other, pro rata in
accordance with their respective entitlements.
(e) Notwithstanding anything contained herein to the contrary, with
respect to each Mortgage Loan subject to an involuntary prepayment of principal
during a Collection Period, all interest collected during such Collection Period
in connection with such involuntary prepayment of principal that the related
lender would be entitled to retain under the related loan documents shall be
treated as excess interest and shall be used to offset any shortfalls of
interest for the related Distribution Date resulting from involuntary
prepayments of principal during such Collection Period prior to such shortfalls
of interest being allocated to any Class of Certificates. Any such interest not
required to offset shortfalls of interest for the related Distribution Date
pursuant to the immediately preceding sentence shall constitute Additional
Master Servicing Compensation.
(f) The foregoing applications of amounts received in respect of any
Mortgage Loan or REO Property shall be determined by the Master Servicer and
reflected in the appropriate monthly report from the Master Servicer and in the
appropriate monthly Trustee Report as provided in Section 4.02.
If an expense under this Agreement relates in the reasonable
judgment of the Master Servicer, the Special Servicer or the Trustee, as
applicable, primarily to the administration of the Trust Fund, any REMIC formed
hereunder or to any determination respecting the amount, payment or avoidance of
any tax under the REMIC Provisions or the actual payment of any REMIC tax or
expense, or this Agreement states that any expense is solely "an expense of the
Trust Fund" or words of similar import, then such expense shall not be allocated
to, deducted or reimbursed from, or otherwise charged against any Companion Loan
Holder and such Companion Loan 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 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 2006-6". 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, in the case of a Whole Loan, the related Companion
Loan 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 Agreements; and
(iii) all other assets included or to be included in the Trust Fund. Such
assignment includes (A) the Mortgage Loans that from time to time are subject to
this Agreement, all interest accrued on the Mortgage Loans on and after the
Cut-off Date and all principal payments received on the Mortgage Loans after the
Cut-off Date (other than principal and interest payments due and payable on the
Mortgage Loans on or before the Cut-off Date, which shall belong and be promptly
remitted to the applicable Mortgage Loan Seller), together with all documents
delivered or caused to be delivered hereunder with respect to such Mortgage
Loans by the related Mortgage Loan Seller; (B) any REO Property acquired in
respect of a Mortgage Loan; (C) 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 (D) in the case of a Mortgage Loan included in a
Whole Loan, all the right, title and interest of the Depositor in the related
Intercreditor Agreement. In connection with the transfer and assignment set
forth in this Section 2.01, the Depositor shall make a cash deposit to the
Certificate Account in an amount equal to the Interest Deposit Amounts. The
foregoing conveyances are subject to the rights of the Sub-Servicers pursuant to
the Sub-Servicing Agreements, which rights are subject in any event to this
Agreement.
Under United States generally accepted accounting principles, the
Depositor shall report: (i) its acquisition of the Mortgage Loans from the
Mortgage Loan Sellers, pursuant to the Mortgage Loan Purchase and Sale
Agreements, as a purchase of such Mortgage Loans from the Mortgage Loan Sellers;
and (ii) its transfer of the Mortgage Loans to the Trustee, pursuant to this
Section 2.01(b), as a sale of such Mortgage Loans to the Trustee. In connection
with the foregoing, the Depositor shall cause all of its records to reflect such
acquisition as a purchase and such transfer as a sale (in each case, as opposed
to a secured loan).
After the Depositor's transfer of the Mortgage Loans to the Trustee
pursuant to this Section 2.01(b), the Depositor shall not take any action
inconsistent with the Trust's ownership of the Mortgage Loans.
In connection with the Depositor's assignment pursuant to this
Section 2.01(b), the Depositor hereby represents and warrants that it has
contractually obligated the Mortgage Loan Sellers, at the Mortgage Loan Sellers'
expense, pursuant to the Mortgage Loan Purchase and Sale Agreements, to deliver
to and deposit with, or cause to be delivered to and deposited with, the Trustee
or a Custodian appointed thereby, on or before the Closing Date, the Mortgage
File and any Additional Collateral (other than Reserve Funds) for each Mortgage
Loan acquired by the Depositor from the Mortgage Loan Sellers. In addition, with
respect to each Mortgage Loan under which any Additional Collateral is in the
form of a Letter of Credit as of the Closing Date, the Depositor hereby
represents and warrants that it has contractually obligated the Mortgage Loan
Sellers to cause to be prepared, executed and delivered to the issuer of each
such Letter of Credit such notices, assignments and acknowledgments as are
required under such Letter of Credit to assign, without recourse, to the Trustee
the related Mortgage Loan Seller's rights as the beneficiary thereof and drawing
party thereunder; provided that the originals of such Letter of Credit shall be
delivered to the Master Servicer. The Depositor shall deliver to the Trustee on
or before the Closing Date a fully executed counterpart of each Mortgage Loan
Purchase and Sale Agreement. If a 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 such 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 any Mortgage Loan Seller or the Depositor to comply with the document
delivery requirements of the Mortgage Loan Purchase and Sale Agreements and this
Section 2.01(b).
The conveyance of the Mortgage Loans and the related rights and
property accomplished hereby is absolute and is intended by the parties hereto
to constitute an absolute transfer of such Mortgage Loans and such other related
rights and property by the Depositor to the Trustee for the benefit of the
Certificateholders. Furthermore, it is not intended that such conveyance be a
pledge of security for a loan. If such conveyance is determined to be a pledge
of security for a loan, however, the Depositor and the Trustee intend that the
rights and obligations of the parties to such loan shall be established pursuant
to the terms of this Agreement. The Depositor and the Trustee also intend and
agree that, in such event, (i) this Agreement shall constitute a security
agreement under applicable law, (ii) the Depositor shall be deemed to have
granted to the Trustee (in such capacity) a first priority security interest in
all of the Depositor's right, title and interest in and to the assets
constituting the Trust Fund, including the Mortgage Loans subject hereto from
time to time, all principal and interest received on or with respect to such
Mortgage Loans after the Cut-off Date (other than scheduled payments of interest
and principal due and payable on such Mortgage Loans on or prior to the related
Due Date in December 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
Agreements, (iii) the possession by the Trustee or its agent of the Mortgage
Notes with respect to the Mortgage Loans subject hereto from time to time and
such other items of property that constitute instruments, money, negotiable
documents or chattel paper shall be deemed to be "possession by the secured
party" or possession by a purchaser or person designated by such secured party
for the purpose of perfecting such security interest under applicable law, and
(iv) notifications to, and acknowledgments, receipts or confirmations from,
Persons holding such property shall be deemed to be notifications to, or
acknowledgments, receipts or confirmations from, financial intermediaries,
bailees or agents (as applicable) of the Trustee for the purpose of perfecting
such security interest under applicable law.
(c) As soon as reasonably possible, and in any event within 90 days
after the later of (i) the Closing Date (or, in the case of a Replacement
Mortgage Loan substituted as contemplated by Section 2.03, after the related
date of substitution) and (ii) the date on which all recording information
necessary to complete the subject document is received by the Trustee, the
Trustee shall complete (to the extent necessary), and shall submit for recording
or filing, as the case may be, in the appropriate office for real property
records or UCC Financing Statements, as applicable, 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 related
Mortgage Loan Seller, the Trustee shall forward to the Master Servicer a copy of
any such assignment that has been received by the Trustee. Each such assignment
shall reflect that it should be returned by the public recording office to the
Trustee following recording, and each such UCC-2 and UCC-3 shall reflect that
the file copy thereof should be returned to the Trustee following filing;
provided that in those instances where the public recording office retains the
original assignment of Mortgage or assignment of Assignment of Leases the
Trustee shall obtain therefrom a certified copy of the recorded original at the
expense of the related Mortgage Loan Seller. The Trustee may assume for purposes
of recordation of each UCC-2 and UCC-3 that the Mortgage File containing the
related UCC-1 includes one state level UCC Financing Statement filing in the
state of incorporation of the related Borrower for each Mortgaged Property (or
with respect to any Mortgage Loan that has two or more related Borrowers, the
state of incorporation of each such Borrower). Each Mortgage Loan Seller will
deliver to the Trustee the UCC Financing Statements, completed pursuant to
Revised Article 9 of the UCC, on the new national forms, in recordable form, to
be recorded pursuant to this Section 2.01(c). The Trustee will submit such UCC
Financing Statements for filing in the state of incorporation as so indicated on
the documents provided. If any such document or instrument is lost or returned
unrecorded or unfiled, as the case may be, because of a defect therein, the
Trustee shall direct the related Mortgage Loan Seller to prepare or cause to be
prepared promptly, pursuant to the related Mortgage Loan Purchase and Sale
Agreement, a substitute therefor or cure such defect, as the case may be, and
thereafter the Trustee shall, upon receipt thereof, cause the same to be duly
recorded or filed, as appropriate with any re-recording, re-filing or rejection
expenses at the expense of such Mortgage Loan Seller. If such Mortgage Loan
Seller has been so notified and has not prepared a substitute document or cured
such defect, as the case may be, within 60 days, the Trustee shall promptly
notify the Master Servicer, the Special Servicer, the Rating Agencies, the
related Companion Loan Holder (if a Whole Loan is involved and the Trustee has
knowledge of such Companion Loan Holder), and the Directing Certificateholder.
Such Mortgage Loan Seller shall be responsible for paying the reasonable fees
and out-of-pocket expenses of the Trustee in connection with the
above-referenced recording and filing of documents insofar as it relates to the
Mortgage Loans transferred by such Mortgage Loan Seller and acquired by the
Depositor from such Mortgage Loan Seller, all as more particularly provided for
in the related Mortgage Loan Purchase and Sale Agreement.
(d) In connection with the Depositor's assignment pursuant to
Section 2.01(b), the Depositor hereby represents and warrants that it has
contractually obligated each Mortgage Loan Seller, at such Mortgage Loan
Seller's expense, pursuant to the related Mortgage Loan Purchase and Sale
Agreement, to deliver to and deposit with, or cause to be delivered to and
deposited with, the Master Servicer or its designee, on or before the Closing
Date, the following items: (i) 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 such Mortgage Loan Seller that relate to
the Mortgage Loans transferred by such Mortgage Loan Seller to the Depositor
and, to the extent they are not required to be a part of a Mortgage File in
accordance with the definition thereof, originals or copies of all documents,
certificates, letters of credit, environmental insurance policies and related
endorsements, and opinions in the possession or under the control of such
Mortgage Loan Seller that were delivered by or on behalf of the related
Mortgagors in connection with the origination of such Mortgage Loans and that
are reasonably required for the ongoing administration and servicing of such
Mortgage Loans (except to the extent such items represent 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 such Mortgage Loan Seller that relate to, and that are
required for the ongoing administration and servicing of, the Mortgage Loans
transferred by such Mortgage Loan Seller to the Depositor. The Master Servicer
shall hold all such documents, records and funds on behalf of the Trustee in
trust for the benefit of the Certificateholders.
(e) In the event a Mortgage Loan is repurchased by the related
Mortgage Loan Seller, where applicable, the Trustee shall re-assign any rights
that such Mortgage Loan Seller had with respect to representations and
warranties made by a third party originator to such Mortgage Loan Seller under
the related Mortgage Loan Purchase and Sale Agreement 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 Sellers in respect of the Mortgage Loans, and that it holds and will hold
all other assets included in REMIC I in trust for the exclusive use and benefit
of all present and future Certificateholders (other than the Class V
Certificateholders). To the extent that the Mortgage File for a Mortgage Loan
included in a Whole Loan relates to the Mortgage Loan as well as the related
Companion Loan, the Trustee shall also hold such Mortgage File for the use and
benefit of the related Companion Loan 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 Sellers, the related Companion Loan Holder (if a Whole
Loan is involved and the Trustee has knowledge of such Companion Loan 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 parentheticals therewith), 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 a Mortgage Loan Seller substitutes a Replacement Mortgage
Loan for any Defective Mortgage Loan as contemplated by Section 2.03, the
Trustee or a Custodian on its behalf shall review the documents delivered to it
or such Custodian with respect to such Replacement Mortgage Loan, and the
Trustee shall deliver a certification comparable to that described in the prior
paragraph, in respect of such Replacement Mortgage Loan, on or about the
thirtieth day following the related date of substitution (and, if any exceptions
are noted, every 90 days thereafter until the earliest of (i) the date on which
such exceptions are eliminated and all related recording/filing has been
completed, (ii) the date on which such Replacement Mortgage Loan is removed from
the Trust Fund and (iii) the second anniversary of the date on which such
Replacement Mortgage Loan was added to the Trust Fund). At any time subsequent
to the second anniversary of the date on which such Replacement Mortgage Loan is
added to the Trust Fund, the Trustee shall, upon request, prepare and deliver to
the requesting party (including any Certificateholder or Certificate Owner) an
updated version of the exception report provided for in the prior sentence.
(d) None of the Trustee, the Master Servicer, the Special Servicer
or any Custodian is under any duty or obligation (i) to determine whether any of
the documents specified in clauses (iii), (v), (vi) and (viii) through (xii) of
the definition of "Mortgage File" exist or are required to be delivered by the
Mortgage Loan Sellers in respect of any Mortgage Loan, or (ii) to inspect,
review or examine any of the documents, instruments, certificates or other
papers relating to the Mortgage Loans delivered to it to determine that the same
are valid, legal, effective, genuine, binding, enforceable, sufficient or
appropriate for the represented purpose or that they are other than what they
purport to be on their face. Notwithstanding the foregoing, with respect to
Letters of Credit referenced in clause (xii) of the definition of "Mortgage
File" the Trustee shall perform the review set forth in 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) of this Section, the Trustee may conclusively rely on the Mortgage Loan
Sellers as to the purported genuineness of any such document and any signature
thereon. It is understood that the scope of the Trustee's review of the Mortgage
Files is limited solely to confirming that the documents specified in clauses
(i) through (v) 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) of this Section. If a
Mortgage Loan Seller is notified of or discovers any error in a Mortgage Loan
Checklist, then such Mortgage Loan Seller shall amend such Mortgage Loan
Checklist within 180 days and distribute such Mortgage Loan Checklist to each of
the other parties hereto; provided, however, that an error in such Mortgage Loan
Checklist by itself shall not be deemed to be a Material Breach or Material
Document Defect. Such new, corrected Mortgage Loan Checklist shall be deemed to
amend and replace the existing Mortgage Loan Checklist; provided, however, that
the correction or amendment of such Mortgage Loan Checklist by itself shall not
be deemed to be a cure of a Material Breach or Material Document Defect.
Section 2.03 Mortgage Loan Seller's Repurchase or Substitution of
Mortgage Loans for Material Document Defects and Material Breaches.
(a) If any party hereto discovers, or receives written notice from a
non-party, that a Document Defect or Breach exists with respect to any Mortgage
Loan, then such party shall give prompt written notice thereof to the other
parties hereto, including (unless it is the party that discovered the Document
Defect or Breach) the Trustee. Upon the Trustee's discovery or receipt of notice
that a Document Defect or Breach exists with respect to any Mortgage Loan, the
Trustee shall notify the Directing Certificateholder, the related Companion Loan
Holder (if a Whole Loan is involved and the Trustee has knowledge of such
Companion Loan Holder), and the related Mortgage Loan Seller.
(b) If necessary, the Trustee shall request the related Mortgage
Loan Seller to comply with Section 4(c) of the related Mortgage Loan Purchase
and Sale Agreement with respect to any Document Defect or other deficiency in a
Mortgage File relating to a Mortgage Loan. If the Trustee becomes aware of any
failure on the part of any Mortgage Loan Seller to do so, the Trustee shall
promptly notify the Master Servicer and the Special Servicer.
(c) Promptly upon its becoming aware of any Material Document Defect
or Material Breach with respect to any Mortgage Loan, the Master Servicer shall
(and the Special Servicer may) notify the related Mortgage Loan Seller in
writing of such Material Document Defect or Material Breach, as the case may be,
and direct such Mortgage Loan Seller that it must, not later than 90 days from
the receipt by such parties of such notice (such 90-day period, the "Initial
Resolution Period"), correct or cure such Material Document Defect or Material
Breach, as the case may be, in all material respects, or repurchase the affected
Mortgage Loan (as, if and to the extent required by the related Mortgage Loan
Purchase and Sale Agreement), at the applicable Purchase Price; provided,
however, that if such Mortgage Loan Seller certifies in writing to the Trustee
(i) that, as evidenced by an accompanying Opinion of Counsel, any such Material
Breach or Material Document Defect, as the case may be, does not and will not
cause the Defective Mortgage Loan, to fail to be a "qualified mortgage" within
the meaning of Section 860G(a)(3) of the Code, (ii) that such Material Breach or
Material Document Defect, as the case may be, is capable of being corrected or
cured but not within the applicable Initial Resolution Period, (iii) that such
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 such Mortgage Loan Seller
anticipates that such Material Breach or Material Document Defect, as the case
may be, will be corrected or cured within an additional period not to exceed the
Resolution Extension Period (a copy of which certification shall be delivered by
the Trustee to the Master Servicer, the Special Servicer, the Directing
Certificateholder, the related Companion Loan Holder (if a Whole Loan is
involved and the Trustee has knowledge of such Companion Loan Holder), then such
Mortgage Loan Seller shall have an additional period equal to the applicable
Resolution Extension Period to complete such correction or cure or, failing
such, to repurchase the affected Mortgage Loan; provided, further, in lieu of
effecting any such repurchase (but, in any event, no later than such repurchase
would have to have been completed), such Mortgage Loan Seller shall be
permitted, during the three-month period following the Startup Day for REMIC I
(or during the two-year period following such Startup Day if the affected
Mortgage Loan is a "defective obligation" within the meaning of Section
860G(a)(4)(B)(ii) of the Code and Treasury Regulations Section 1.860G-2(f)), to
replace the affected Mortgage Loan with one or more Qualifying Substitute
Mortgage Loans and to pay a cash amount equal to the applicable Substitution
Shortfall Amount, subject to any other applicable terms and conditions of the
related Mortgage Loan Purchase and Sale Agreement and this Agreement. If any
substitution for a Deleted Mortgage Loan is not completed in all respects by the
end of the three-month (or, if applicable, the two-year) period contemplated by
the preceding sentence, such Mortgage Loan Seller shall be barred from doing so
(and, accordingly, will be limited to the cure/repurchase remedies contemplated
hereby), and no party hereto shall be liable thereto for any loss, liability or
expense resulting from the expiration of such period. If any Mortgage Loan is to
be repurchased or replaced as contemplated by this Section 2.03, the Master
Servicer shall designate the Certificate Account as the account to which funds
in the amount of the applicable Purchase Price or Substitution Shortfall Amount
(as the case may be) are to be wired, and the Master Servicer shall promptly
notify the Trustee when such deposit is made. Any such repurchase or replacement
of a Mortgage Loan shall be on a whole loan, 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 such Mortgage Loan Seller were to
repurchase or substitute for only the affected Crossed-Collateralized Mortgage
Loans or affected Mortgaged Properties as to which a Material Breach or Material
Document Defect had occurred without regard to this paragraph: (i) the debt
service coverage ratio for any related Cross-Collateralized Mortgage Loans or
Mortgaged Properties for the four calendar quarters immediately preceding the
repurchase or substitution is not less than the greater of (a) the debt service
coverage ratio immediately prior to the repurchase, and (b) the debt service
coverage ratio on the Closing Date, subject to a floor of 1.25x, and (ii) the
loan-to-value ratio for any related Crossed-Collateralized Mortgage Loans or
Mortgaged Properties is not greater than the lesser of (a) the loan-to-value
ratio immediately prior to the repurchase and (b) the loan-to-value ratio on the
Closing Date, subject to a cap of 75%. In the event that both of the conditions
set forth in the preceding sentence would be satisfied, the related Mortgage
Loan Seller may elect either to repurchase or substitute for only the affected
Crossed-Collateralized Mortgage Loan or Mortgaged Properties as to which the
Material Breach or Material Document Defect exists or to repurchase or
substitute for the aggregate Crossed-Collateralized Mortgage Loans or Mortgaged
Properties.
To the extent that the related Mortgage Loan Seller repurchases or
substitutes for an affected Cross-Collateralized Mortgage Loan or Mortgaged
Property in the manner prescribed above while the Trustee continues to hold any
related Cross-Collateralized Mortgage Loans, such Mortgage Loan Seller and the
Depositor shall either uncross the repurchased Cross-Collateralized Mortgage
Loan or affected Mortgaged Property (provided the Depositor has received an
Opinion of Counsel that uncrossing the repurchased Cross-Collateralized Mortgage
Loan will not adversely affect the status of either REMIC I or REMIC II as a
REMIC under the Code) or 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 related Mortgage Loan Seller as contemplated by
this Section 2.03, the Master Servicer shall direct such party effecting the
substitution to deliver the related Mortgage File to the Trustee, to certify
that such substitute mortgage loan satisfies or such substitute mortgage loans
satisfy, as the case may be, all of the requirements of the definition of
"Qualifying Substitute Mortgage Loan" and to send such certification to the
Trustee. No mortgage loan may be substituted for a Defective Mortgage Loan as
contemplated by this Section 2.03 if the Mortgage Loan to be replaced was itself
a Replacement Mortgage Loan, in which case, absent a cure of the relevant
Material Breach or Material Document Defect, the 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 December 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
related Mortgage Loan Seller as contemplated by this Section 2.03, the Master
Servicer shall direct such 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
related Mortgage Loan Seller as contemplated by this Section 2.03 has been
deposited into the Certificate Account, and further, if applicable, upon receipt
of the Mortgage File for each Replacement Mortgage Loan (if any) to be
substituted for a Deleted Mortgage Loan, together with the certification
referred to in Section 2.03(f) from the party effecting the substitution, if
any, the Trustee shall (i) release or cause the release of the Mortgage File and
any Additional Collateral held by or on behalf of the Trustee for the Deleted
Mortgage Loan to the party effecting the repurchase/substitution or its designee
and (ii) execute and deliver such instruments of release, transfer and/or
assignment, in each case without recourse, as shall be provided to it and are
reasonably necessary to vest in the party effecting the repurchase/substitution
or its designee the ownership of the Deleted Mortgage Loan, and the Master
Servicer shall notify the applicable Mortgagors of the transfers of the Deleted
Mortgage Loan(s) and any Replacement Mortgage Loan(s). If the Mortgage related
to the Deleted Mortgage Loan has been recorded in the name of MERS or its
designee, the Master Servicer shall take all necessary action to reflect the
release of such Mortgage on the records of MERS. In connection with any such
repurchase or substitution by the related Mortgage Loan Seller, each of the
Master Servicer and the Special Servicer shall deliver to the party effecting
the repurchase/substitution or its designee any portion of the related Servicing
File, together with any Escrow Payments, Reserve Funds and Additional
Collateral, held by or on behalf of the Master Servicer or the Special Servicer,
as the case may be, with respect to the Deleted Mortgage Loan, in each case at
the expense of the party effecting the repurchase/substitution. The reasonable
"out-of-pocket" costs and expenses incurred by the Master Servicer, the Special
Servicer and/or the Trustee pursuant to this Section 2.03(g), shall be payable
to each of them, first, by the related Mortgage Loan Seller to the extent such
Mortgage Loan Seller was required to repurchase the affected Mortgage Loan, and
then as Servicing Advances in respect of the affected Mortgage Loan.
(h) The applicable Mortgage Loan Purchase and Sale Agreement
provides the sole remedy available to the Certificateholders, or the Trustee on
their behalf, respecting any Breach or Document Defect with respect to Mortgage
Loans sold by the related Mortgage Loan Seller. If the related Mortgage Loan
Seller defaults on its obligations to repurchase or replace any Mortgage Loan as
contemplated by this Section 2.03, the Master Servicer shall (and the Special
Servicer may) promptly notify the Trustee in writing, and the Trustee shall
notify the Certificateholders. Thereafter, the Master Servicer (with respect to
Performing Loans where the 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 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 such Mortgage Loan Seller in
respect of its obligations under Section 4 of the related Mortgage Loan Purchase
and Sale Agreement, the Master Servicer shall also take such actions on behalf
of the Trust with respect to the enforcement of such obligations of such
Mortgage Loan Seller), including the institution and prosecution of appropriate
legal proceedings, as the Master Servicer 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 such Mortgage Loan Seller because such
Mortgage Loan Seller either failed, or was not required, to cure the subject
actual or alleged Breach or Document Defect or repurchase/replace the affected
related Mortgage Loan, shall constitute Servicing Advances in respect of the
affected Mortgage Loan.
Without limiting the Trustee's duties under this Section 2.03, the
Trustee irrevocably designates the Special Servicer, with respect to the
Specially Serviced Loans, and the Master Servicer, with respect to Performing
Loans, for the benefit of Certificateholders to use reasonable efforts to
enforce, after notice to the Trustee, any of the obligations of a Mortgage Loan
Seller under the related Mortgage Loan Purchase and Sale Agreement. Such
enforcement including, without limitation, the legal prosecution of claims,
shall be carried out in such form, to such extent and at such time as the
Special Servicer or Master Servicer, as the case may be, shall reasonably
determine is in the best interests of the Certificateholders (taken as a
collective whole). All out-of-pocket expenses (including attorney's fees and
litigation costs and expenses) incurred by the Special Servicer or Master
Servicer, as the case may be, in carrying out its obligations hereunder shall be
reimbursable to the Special Servicer or Master Servicer, as the case may be, and
constitute Additional Trust Fund Expenses. The Trustee shall upon request
promptly furnish or cause to be furnished to the Special Servicer or Master
Servicer, as the case may be, limited powers of attorney and other documents
necessary, delivered to it by the Special Servicer or Master Servicer, as the
case may be, for execution, or appropriate to enable the Special Servicer or
Master Servicer, as the case may be, to carry out such enforcement duties
subject to Section 3.01(c).
(i) In the event that either pursuant to a settlement agreed to by a
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, such Mortgage
Loan Seller makes a cash payment, either as a cure of a Material Breach or a
Material Defect, or in lieu of a repurchase of a Mortgage Loan on which a
Material Breach or a Material Defect exists or is alleged to exist (each such
payment, a "Loss of Value Payment") with respect to such Mortgage Loan, the
amount of each such Loss of Value Payment shall be determined either (i) by
mutual agreement of the Special Servicer on behalf of the Trust with respect to
such Material Breach or Material Defect, as the case may be, and such Mortgage
Loan Seller or (ii) by judicial decision. Provided that such Loss of Value
Payment is made, the Loss of Value Payment shall serve as the sole remedy
available to the Certificateholders and the Trustee on their behalf regarding
any such Material Breach or Material Defect in lieu of any obligation of the
related Mortgage Loan Seller to otherwise cure such Material Breach or Material
Defect or repurchase the affected Mortgage Loan based on such Material Breach or
Material Defect under any circumstances. In the event there is a Loss of Value
Payment made by a Mortgage Loan Seller in accordance with this Section 2.03(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, in the case of a Whole Loan, the holder of the related Companion Loan 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 related Mortgage Loan Seller
pursuant to the related Mortgage Loan Purchase and Sale Agreement. The
Depositor has not transferred any of its right, title and interest in and
to the Mortgage Loans to any Person other than the Trustee.
(xv) Except for any actions that are the express responsibility of
another party hereunder or under any 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, in the case of
a Whole Loan, the related Companion Loan 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 Loans
is covered by errors and omissions insurance in the amounts and with the
coverage required by Section 3.07(c). None of the Master Servicer or any
of its officers or employees that is involved in the servicing or
administration of the Loans has been refused such coverage or insurance.
(viii) No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or
body is required for the consummation by the Master Servicer of the
transactions contemplated herein, except for those consents, approvals,
authorizations and orders that previously have been obtained and those
filings and registrations that previously have been completed.
(ix) The Master Servicer has examined each of the Sub-Servicing
Agreements entered into by the Master Servicer that will be in effect as
of the Closing Date with respect to the Loans, and each such Sub-Servicing
Agreement complies with the requirements of Section 3.22(a) in all
material respects.
(b) The representations and warranties of the Master Servicer set
forth in Section 2.05(a) shall survive the execution and delivery of this
Agreement and inure to the benefit of the Persons for whose benefit they were
made for so long as the Trust remains in existence. Upon discovery by any of the
parties hereto of a breach of any of such representations and warranties that
materially and adversely affects the interests of the Certificateholders or any
party hereto, the party discovering such breach shall give prompt written notice
to each of the other parties hereto.
(c) Each successor Master Servicer (if any) shall be deemed to have
made, as of the date of its succession, each of the representations set forth in
Section 2.05(a), subject to such appropriate modifications to the representation
and warranty set forth in Section 2.05(a)(i) to accurately reflect such
successor's jurisdiction of organization and whether it is a corporation,
partnership, bank, association or other type of organization.
Section 2.06 Representations and Warranties of the Special Servicer.
(a) The Special Servicer hereby represents and warrants to the other
parties hereto and for the benefit of the Certificateholders and, in the case of
a Whole Loan, the related Companion Loan Holder, as of the Closing Date, that:
(i) The Special Servicer is duly organized, validly existing and in
good standing as a limited liability company under the laws of the
Commonwealth of Massachusetts, 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 limited liability company
power and authority to enter into and consummate all transactions
contemplated by this Agreement, has duly authorized the execution,
delivery and performance of this Agreement, and has duly executed and
delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Special Servicer, enforceable against the
Special Servicer in accordance with the terms hereof, except as such
enforcement may be limited by (A) applicable bankruptcy, receivership,
insolvency, reorganization, liquidation, fraudulent transfer, moratorium
and other laws affecting the enforcement of creditors' rights generally,
and (B) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law.
(v) The Special Servicer is not in violation of, and its execution
and delivery of this Agreement and its performance and compliance with the
terms of this Agreement do not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Special Servicer's good faith and
reasonable judgment, is likely to affect materially and adversely either
the ability of the Special Servicer to perform its obligations under this
Agreement or the financial condition of the Special Servicer.
(vi) No litigation is pending or, to the best of the Special
Servicer's knowledge, threatened against the Special Servicer, the outcome
of which in the Special Servicer's reasonable judgment, is likely to
materially and adversely affect either the ability of the Special Servicer
to perform its obligations under this Agreement or the financial condition
of the Special Servicer.
(vii) Each officer or employee of the Special Servicer that has
responsibilities concerning the servicing and administration of the Loans
is covered by errors and omissions insurance in the amounts and with the
coverage required by Section 3.07(c).
(viii) No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or
body is required for the consummation by the Special Servicer of the
transactions contemplated herein, except for those consents, approvals,
authorizations and orders that previously have been obtained and those
filings and registrations that previously have been completed.
(b) The representations and warranties of the Special Servicer set
forth in Section 2.06(a) shall survive the execution and delivery of this
Agreement and inure to the benefit of the Persons for whose benefit they were
made for so long as the Trust remains in existence. Upon discovery by any of the
parties hereto of a breach of any of such representations and warranties that
materially and adversely affects the interests of the Certificateholders or any
party hereto, the party discovering such breach shall give prompt written notice
to each of the other parties hereto.
(c) Each successor Special Servicer (if any) shall be deemed to have
made, as of the date of its succession, each of the representations set forth in
Section 2.06(a), subject to such appropriate modifications to the representation
and warranty set forth in Section 2.06(a)(i) to accurately reflect such
successor's jurisdiction of organization and whether it is a corporation,
partnership, bank, association or other type of organization.
Section 2.07 Representations and Warranties of the Trustee and the
REMIC Administrator.
(a) 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,
in the case of a Whole Loan, the related Companion Loan 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 do not constitute a violation of, any law, any order or
decree of any court or arbiter, or any order, regulation or demand of any
federal, state or local governmental or regulatory authority, which
violation, in the Bank's good faith and reasonable judgment, is likely to
affect materially and adversely either the ability of the Bank to perform
its obligations under this Agreement or the financial condition of the
Bank.
(vi) No litigation is pending or, to the best of the Bank's
knowledge, threatened against the Bank that would prohibit the Bank from
entering into this Agreement or, in the Bank's good faith and reasonable
judgment, is likely to materially and adversely affect either the ability
of the Bank to perform its obligations under this Agreement or the
financial condition of the Bank.
(vii) No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or
body is required for the consummation by the Bank of the transactions
contemplated herein, except for those consents, approvals, authorizations
and orders that previously have been obtained and those filings and
registrations that previously have been completed.
(b) The representations and warranties of the Bank set forth in
Section 2.07(a) shall survive the execution and delivery of this Agreement and
shall inure to the benefit of the Persons for whose benefit they were made for
so long as the Trust remains in existence. Upon discovery by any of the parties
hereto of a breach of any of such representations and warranties that materially
and adversely affects the interests of the Certificateholders or any party
hereto, the party discovering such breach shall give prompt written notice to
each of the other parties hereto.
(c) Each successor Trustee or REMIC Administrator (if any and
regardless of whether the Trustee and the REMIC Administrator are different
Persons) shall be deemed to have made, as of the date of its succession, each of
the representations set forth in Section 2.07(a), subject to such appropriate
modifications to the representation and warranty set forth in Section 2.07(a)(i)
to accurately reflect such successor's jurisdiction of organization and whether
it is a corporation, partnership, bank, association or other type of
organization. In any such case, the term "Bank" shall be deemed to mean such
successor Trustee or the REMIC Administrator, as appropriate.
Section 2.08 [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 applicable Mortgage Loan Seller as beneficial
owner of the Loss of Value Reserve Fund. The related Mortgage Loan Seller will
be the beneficial owner of the Loss of Value Reserve Fund for all federal income
tax purposes, and shall be taxable on all income earned thereon. The Trustee, by
execution and delivery hereof, acknowledges the assignment to it of the assets
consisting of the Loss of Value Reserve Fund, including the amounts held
therein, and declares that it or the REMIC Administrator on its behalf holds and
will hold such assets, through the Special Servicer, in accordance with Section
3.04(g), in trust and for the benefit of the Certificateholders, as their
interests may appear.
Section 2.13 Designation of Grantor Trust.
The Depositor, as of the Closing Date, and concurrently with the
execution and delivery hereof, does hereby assign without recourse all the
right, title and interest of the Depositor in and to the Excess Interest to the
Trustee for the benefit of the Holders of the Class V Certificates. The Trustee
acknowledges the assignment to it of the Excess Interest and declares that it
holds and will hold the same in trust for the exclusive use and benefit of all
present and future Holders of the Class V Certificates. Concurrently with the
assignment to the Trustee of the Excess Interest, and in exchange therefor, at
the direction of the Depositor, the Trustee has executed, authenticated and
delivered to or upon the order of the Depositor, the Class V Certificates in
authorized denominations. The Class V Certificates are hereby designated as
undivided beneficial interests in the portion of the Trust Fund consisting of
Excess Interest and the Excess Interest Distribution Account, which portion
shall be treated as a grantor trust within the meaning of subpart E, Part I of
subchapter J of the Code.
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
Section 3.01 Administration of the Loans.
(a) Each of the Master Servicer and the Special Servicer shall
service and administer the Loans 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 a Whole Loan, on behalf of the related Companion Loan Holder, as a
collective whole, in accordance with any and all applicable laws, the terms of
this Agreement, the terms of the respective Loans and in the case of a Whole
Loan, the related Intercreditor Agreement, and, to the extent consistent with
the foregoing, in accordance with the Servicing Standard. Without limiting the
foregoing, and subject to Section 3.21, (i) the Master Servicer shall service
and administer all Performing Loans, and (ii) the Special Servicer shall service
and administer (x) each Loan (other than a Corrected Loan) as to which a
Servicing Transfer Event has occurred and is continuing, and (y) each REO
Property; provided, however, that the Master Servicer shall continue to collect
information and prepare all reports to the Trustee required hereunder with
respect to any Specially Serviced Loans and REO Properties (and the related REO
Loans), and further to render such incidental services with respect to any
Specially Serviced Loans and REO Properties as are specifically provided for
herein; and provided, further, the Special Servicer shall render such incidental
services with respect to Performing Loans as are specifically provided for
herein. The Master Servicer shall not, on behalf of the Trust, obtain title to a
Mortgaged Property.
(b) Subject to Section 3.01(a) the Master Servicer and the Special
Servicer shall each have full power and authority, acting alone or through
Sub-Servicers, to do or cause to be done any and all things in connection with
such servicing and administration that it may deem necessary or desirable.
Without limiting the generality of the foregoing, each of the Master Servicer
(with respect to Performing Loans and Corrected Loans) and the Special Servicer
(with respect to Specially Serviced Loans and REO 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 a Whole Loan is
affected, the related Companion Loan 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) except as provided in Section 3.10(d), initiate any action,
suit or proceeding solely under the Trustee's name without indicating the Master
Servicer's or such Special Servicer's, as applicable, representative capacity,
or (ii) take any action with the intent to cause, and that actually does cause,
the Trustee to be registered to do business in any state.
The Master Servicer and/or the Special Servicer shall indemnify the
Trustee for any and all costs, liabilities and expenses incurred by the Trustee
in connection with the negligent or willful misuse of such powers of attorney by
the Master Servicer or the Special Servicer, as applicable.
(d) The relationship of each of the Master Servicer and the Special
Servicer to the Trustee and, unless they are the same Person, each other under
this Agreement is intended by the parties to this Agreement to be that of an
independent contractor and not that of a joint venturer, partner or agent.
(e) The parties hereto acknowledge that each of the EZ Storage
Portfolio Loan and the Chicago Loop Portfolio Loan is subject to the terms and
conditions of the related Intercreditor Agreement. The parties hereto further
recognize (i) the respective rights and obligations of the "Holders" under the
EZ Storage Portfolio Loan Intercreditor Agreement, including with respect to the
allocation of collections on or in respect of EZ Storage Portfolio Loan and the
making of payments to the "Holders" in accordance with Section 1 of the EZ
Storage Portfolio Loan Intercreditor Agreement and (ii) the respective rights
and obligations of the holders of Chicago Loop Portfolio Loan and the Chicago
Loop Portfolio Note B under the Chicago Loop Portfolio Intercreditor Agreement,
including with respect to the allocation of collections on or in respect of
Chicago Loop Portfolio Loan and the Chicago Loop Portfolio Note B and the making
of payments to the "Lenders" in accordance with Section 2 of the Chicago Loop
Portfolio Intercreditor Agreement.
Notwithstanding the foregoing, if, at such time as a Mortgage Loan
included in a Whole Loan shall no longer be part of the Trust Fund, a separate
servicing agreement with respect to such Whole Loan has not been entered into,
then, until such time as a separate servicing agreement is entered into and 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; and (ii) references to the
"Trustee", "Trust" and "Certificateholders" (or any sub-group thereof) being
construed to refer to the new "Note A Holder", "Lead Lender" or its equivalent
under the related Intercreditor Agreement, as applicable; 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 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). With, respect to a Whole Loan, subject to
any express provision contained in the related Intercreditor Agreement to the
contrary, nothing herein shall be deemed to override the provisions of such
Intercreditor Agreement with respect to the rights of the Companion Loan Holder
thereunder. With respect to the servicing and administration duties and
obligations with respect to a 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 Loans) and the
Special Servicer (with respect to Specially Serviced Loans) shall undertake
reasonable efforts to collect all payments called for under the terms and
provisions of the Loans and shall follow such collection procedures as are
consistent with applicable law, the express terms of this Agreement and the
related loan documents and, to the extent consistent with the foregoing, the
Servicing Standard, provided that neither the Master Servicer nor the Special
Servicer shall, with respect to any ARD Loan after its Anticipated Repayment
Date, take any enforcement action with respect to the payment of Excess Interest
(other than the making of requests for its collection), unless (i) the taking of
an enforcement action with respect to the payment of other amounts due under
such Loan is, in the good faith and reasonable judgment of the Special Servicer,
and without regard to such Excess Interest, also necessary, appropriate and
consistent with the Servicing Standard or (ii) all other amounts due under such
Loan have been paid, the payment of such Excess Interest has not been forgiven
in accordance with Section 3.20 and, in the good faith and reasonable judgment
of the Special Servicer, the Liquidation Proceeds expected to be recovered in
connection with such enforcement action will cover the anticipated costs of such
enforcement action and, if applicable, any associated Advance Interest.
Consistent with the foregoing, the Special Servicer (as to Specially Serviced
Loans) may waive any Default Charges in connection with any specific delinquent
payment on a Loan it is obligated to service hereunder. Consistent with the
foregoing and in each case subject to the Servicing Standard, the Master
Servicer (or if applicable a Sub-Servicer) may grant a one time waiver of
Default Charges in connection with a late payment, provided that for any waiver
thereafter of Default Charges in connection with a 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 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 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;
Servicing Account; Servicing Advances; Reserve Accounts.
(a) The Master Servicer shall, as to all the Loans, establish and
maintain one or more accounts (each a "Servicing Account"), into which all
Escrow Payments received by it with respect to the Loans shall be deposited and
retained. Subject to any terms of the related loan documents that specify the
nature of the account in which Escrow Payments shall be held, each Servicing
Account shall be an Eligible Account. Withdrawals of amounts so collected in
respect of any Loan (and interest earned thereon) from a Servicing Account may
be made only: (i) to effect payment of real estate taxes, assessments, insurance
premiums, ground rents (if applicable) and comparable items in respect of
related Mortgaged Property; (ii) to reimburse the Master Servicer, the Special
Servicer 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 Loan. If the Master Servicer shall deposit into a Servicing Account any
amount not required to be deposited therein, it may at any time withdraw such
amount from such Servicing Account, any provision herein to the contrary
notwithstanding. The Special Servicer shall within two Business Days after
receipt deliver all Escrow Payments received by it to the Master Servicer for
deposit into the applicable Servicing Account.
(b) The Master Servicer shall as to each Loan, including each
Specially Serviced Loan, (i) maintain accurate records with respect to the
related Mortgaged Property reflecting the status of real estate taxes,
assessments and other similar items that are or may become a lien thereon and
the status of insurance premiums and any ground rents payable in respect thereof
and (ii) use reasonable efforts consistent with the Servicing Standard to
obtain, from time to time, all bills for the payment of such items (including
renewal premiums) and effect payment thereof prior to the applicable penalty or
termination date. For purposes of effecting any such payment, the Master
Servicer shall apply Escrow Payments as allowed under the terms of the related
loan documents; provided that if such Loan does not require the related
Mortgagor to escrow for the payment of real estate taxes, assessments, insurance
premiums, ground rents (if applicable) and similar items, each of the Master
Servicer and the Special Servicer shall use reasonable efforts, as to those
Loans it is obligated to service hereunder, and subject to and in accordance
with the Servicing Standard, enforce the requirement of the related Mortgage
that the Mortgagor make payments in respect of such items at the time they first
become due.
(c) In accordance with the Servicing Standard and for all Loans, but
subject to Section 3.11(h), the Master Servicer shall make a Servicing Advance
with respect to each Mortgaged Property (including each Mortgaged Property
relating to a Specially Serviced Loan) all such funds as are necessary for the
purpose of effecting the timely payment of (i) real estate taxes, assessments
and other similar items, (ii) ground rents (if applicable), and (iii) premiums
on Insurance Policies, in each instance prior to the applicable penalty or
termination date if and to the extent that (x) Escrow Payments (if any)
collected from the related Mortgagor are insufficient to pay such item when due,
and (y) the related Mortgagor has failed to pay such item on a timely basis;
provided that, in the case of amounts described in the preceding clause (i), the
Master Servicer shall not make a Servicing Advance of any such amount until the
Master Servicer (in accordance with the Servicing Standard) has actual knowledge
that the Mortgagor has not made such payments and reasonably anticipates that
such amounts will not be paid by the related Mortgagor on or before the
applicable penalty date. All such Advances shall be reimbursable in the first
instance from related collections from the Mortgagor and further as provided in
Section 3.05. No costs incurred by the Master Servicer in effecting the payment
of real estate taxes, assessments and, if applicable, ground rents on or in
respect of such Mortgaged Properties shall, for purposes hereof, including
calculating monthly distributions to Certificateholders, be added to the
respective unpaid principal balances or Stated Principal Balances of the related
Loans, notwithstanding that the terms of such Loans so permit; provided that
this sentence shall not be construed to limit the rights of the Master Servicer
on behalf of the Trust or, if a Whole Loan is involved, on behalf of the related
Companion Loan Holder, to enforce any obligations of the related Mortgagor under
such 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 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 Loan. In addition, as and to the extent
consistent with the Servicing Standard and the related loan documents, the
Master Servicer may make withdrawals of amounts so deposited, and draws under
any Letter of Credit so delivered, to prepay the Loan in the event certain
leasing or other economic criteria are not satisfied at the related Mortgaged
Property (but only if such prepayment is required by the related loan documents
or continuing to hold such funds or Letter of Credit as Additional Collateral is
not consistent with the Servicing Standard), or to release such amounts to the
related Mortgagor or otherwise apply such amounts for any other appropriate
purpose in the event that such criteria are satisfied, and the Master Servicer
may return any Letter of Credit so delivered to the related Mortgagor. Subject
to the terms of the related loan documents, each Reserve Account shall be an
Eligible Account. Interest and other income, if any, earned on funds on deposit
in any Reserve Account held by the Master Servicer (to the extent of any Net
Investment Earnings with respect to such Reserve Account for any Collection
Period), shall be for the benefit of and payable to the Master Servicer, unless
otherwise required to be paid to the related Mortgagor by law or the terms of
the related Loan. Any out-of-pocket expenses incurred by the Master Servicer to
enable the Master Servicer to make any draw under any Letter of Credit shall
constitute a Servicing Advance, and the Master Servicer shall make reasonable
efforts to recover such expenses from the related Mortgagor to the extent the
Mortgagor is required to pay such expenses under the terms of the related loan
documents.
(e) To the extent an operations and maintenance plan is required to
be established and executed pursuant to the terms of a Loan, the Master Servicer
shall request from the Mortgagor written confirmation thereof within a
reasonable time after the later of the Closing Date and the date as of which
such plan is required to be established or completed. To the extent any repairs,
capital improvements, actions or remediations are required to have been taken or
completed pursuant to the terms of the Loan, the Master Servicer shall request
from the Mortgagor written confirmation of such actions and remediations within
a reasonable time after the later of the Closing Date and the date as of which
such action or remediations are required by the related loan documents to be or
to have been taken or completed. To the extent a Mortgagor shall fail to
promptly respond to any inquiry described in this Section 3.03(e), the Master
Servicer shall determine whether the related Mortgagor has failed to perform its
obligations under the related Loan and report any such failure to the Special
Servicer, the Trustee, the related Companion Loan Holder (if a Whole Loan is
involved), and the Directing Certificateholder within a reasonable time after
the date as of which such actions or remediations are required to be or to have
been taken or completed. The Master Servicer shall promptly give written notice
to the Trustee, the Special Servicer, the related Companion Loan Holder (if a
Whole Loan is involved), and the Directing Certificateholder if the Master
Servicer shall determine that any Mortgagor has failed to perform its
obligations under the related loan documents in respect of environmental
matters.
Section 3.04 Certificate Account, Distribution Account, REMIC I
Distribution Account, REMIC II Distribution Account, Excess Interest
Distribution Account, Excess Liquidation Proceeds Account and Whole Loan
Custodial Account.
(a) The Master Servicer shall segregate and hold all funds collected
and received by it in connection with the Mortgage Pool separate and apart from
its own funds and general assets. The Master Servicer shall establish and
maintain one or more accounts (collectively, the "Certificate Account"), held on
behalf of the Trustee in trust for the benefit of the Certificateholders and the
Trustee as the Holder of the REMIC I Regular Interests. The Certificate Account
shall be an Eligible Account. Amounts attributable to the Mortgage Loans will be
assets of REMIC I. The Master Servicer shall deposit or cause to be deposited
into the Certificate Account, within one Business Day of receipt (in the case of
payments by Mortgagors or other collections on or in respect of the Mortgage
Loans) or as otherwise required hereunder, the following payments and
collections received or made by or on behalf of it subsequent to the Cut-off
Date (other than in respect of principal, interest, Escrow Payments and any
other amounts due and payable on the Mortgage Loans on or before the Cut-off
Date, which payments shall be delivered promptly to the related Mortgage Loan
Seller or its related designee, with negotiable instruments endorsed as
necessary and appropriate without recourse):
(i) all payments, from whatever source, or transfers from a debt
service reserve account, on account of principal, including Principal
Prepayments, on the Mortgage Loans;
(ii) all payments, from whatever source, or transfers from a debt
service reserve account, on account of interest on the Mortgage Loans
including Default Interest 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) the Interest Deposit Amounts received from the Depositor
pursuant to Section 2.01(b); and
(xii) any Loss of Value Payments, as set forth in Section 3.05(g)
The foregoing requirements for deposit into the Certificate Account
shall be exclusive. Without limiting the generality of the foregoing, actual
payments from Mortgagors in the nature of Escrow Payments, Reserve Funds, late
payment charges, assumption fees, assumption application fees, earnout fees,
extension fees, modification fees, charges for beneficiary statements or demands
and amounts collected for checks returned for insufficient funds, need not be
deposited by the Master Servicer in the Certificate Account. The Master Servicer
shall promptly deliver to the Special Servicer any of the foregoing items
received by it, if and to the extent that such items constitute Additional
Special Servicing Compensation payable to the Special Servicer. If the Master
Servicer shall deposit into the Certificate Account any amount not required to
be deposited therein, it may at any time withdraw such amount from the
Certificate Account, any provision herein to the contrary notwithstanding.
Upon receipt of any of the amounts described in clauses (i) through
(iv) and (viii) of this Section 3.04(a) with respect to any Loan (for the
avoidance of doubt, not including any REO Loan), the Special Servicer shall
promptly, but in no event later than one Business Day after receipt of available
funds, remit such amounts to the Master Servicer for deposit into the
Certificate Account in accordance with the second preceding paragraph, unless
the Special Servicer determines, consistent with the Servicing Standard, that a
particular item should not be deposited because of a restrictive endorsement.
Any such amounts received by the Special Servicer with respect to an REO
Property (other than an REO Property related to a Whole Loan) shall be deposited
by the Special Servicer into the REO Account and remitted to the Master Servicer
for deposit into the Certificate Account pursuant to Section 3.16(c). With
respect to any such amounts paid by check to the order of the Special Servicer,
the Special Servicer shall endorse such check to the order of the Master
Servicer unless the Special Servicer determines, consistent with the Servicing
Standard, that a particular item cannot be so endorsed and delivered because of
a restrictive endorsement.
(b) The Trustee shall establish and maintain one or more trust
accounts (collectively, the "Distribution Account") to be held in trust for the
benefit of the Trust as holder of the 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)(i) 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
Whole Loan Custodial Accounts in which the Master Servicer shall deposit or
cause to be deposited within one Business Day of receipt (in the case of
payments by Mortgagors or other collections on or in respect of a Whole Loan) or
as otherwise required hereunder, the following payments and collections received
or made by or on behalf of it subsequent to the Cut-off Date (other than in
respect of principal, interest and any other amounts due and payable on such
Whole Loan on or before the Cut-off Date, which payments shall be held as
provided in the related Intercreditor Agreement):
(i) all payments, from whatever source, or transfers from a debt
service reserve account, on account of principal, including Principal
Prepayments, on such Whole Loan;
(ii) all payments, from whatever source, or transfers from a debt
service reserve account, on account of interest on such Whole Loan;
(iii) all Prepayment Premiums received in respect of such Whole
Loan;
(iv) all payments, Insurance Proceeds, Condemnation Proceeds and
Liquidation Proceeds received in respect of such Whole Loan, together with
any amounts representing recoveries of Workout-Delayed Reimbursement
Amounts or Nonrecoverable Advances in respect of the related Whole Loan;
(v) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.06 in connection with losses incurred with respect
to Permitted Investments of funds held in such Whole Loan Custodial
Account;
(vi) any amounts required to be deposited by the Master Servicer or
the Special Servicer pursuant to Section 3.07(b) in connection with losses
with respect to such Whole Loan resulting from a deductible clause in a
blanket or master single insurance policy;
(vii) any amounts required to be transferred from the related REO
Account pursuant to Section 3.16(c);
(viii) any amounts representing payments made by Mortgagors that are
allocable to cover items in respect of which Servicing Advances have been
made; and
(ix) insofar as they do not constitute Escrow Payments, any amounts
paid by the related Mortgagor with respect to the related Whole Loan
specifically to cover items for which a Servicing Advance has been made or
that represent a recovery of property protection expenses from a
Mortgagor.
The foregoing requirements for deposit into the Whole Loan Custodial
Accounts shall be exclusive. Without limiting the generality of the foregoing,
actual payments from Mortgagors in the nature of Escrow Payments, Reserve Funds,
assumption fees, assumption application fees, earnout fees, extension fees,
modification fees, charges for beneficiary statements or demands and amounts
collected for checks returned for insufficient funds, need not be deposited by
the Master Servicer in the Whole Loan Custodial Accounts. The Master Servicer
shall promptly deliver to the Special Servicer any of the foregoing items
received by it, if and to the extent that such items constitute Additional
Special Servicing Compensation payable to the Special Servicer. If the Master
Servicer shall deposit into any Whole Loan Custodial Account any amount not
required to be deposited therein, it may at any time withdraw such amount from
such Whole Loan Custodial Account, any provision herein to the contrary
notwithstanding.
Notwithstanding the foregoing or any other provision to the contrary
in this Agreement, the Master Servicer may maintain the Certificate Account and
the respective 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 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 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
Whole Loan Custodial Accounts, respectively; (iv) the Master Servicer's
maintaining the Certificate Account and the respective 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 Companion Loan Holder (if a
Whole Loan is affected); 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 2006-6, and
the related Companion Loan Holder, as their interests may appear,
Certificate/Custodial Account".
Upon receipt of any of the amounts described in clauses (i) through
(iv) and (viii) of this Section 3.04(e) with respect to such Whole Loan (for the
avoidance of doubt, not including any REO Loan), the Special Servicer shall
promptly, but in no event later than one Business Day after receipt of available
funds, remit such amounts to the Master Servicer for deposit into the applicable
Whole Loan Custodial Account in accordance with the second preceding paragraph,
unless the Special Servicer determines, consistent with the Servicing Standard,
that a particular item should not be deposited because of a restrictive
endorsement. Any such amounts received by the Special Servicer with respect to
an REO Property (other than an REO Property that is not related to a Whole Loan)
shall be deposited by the Special Servicer into the related REO Account and
remitted to the Master Servicer for deposit into the related Whole Loan
Custodial Account pursuant to Section 3.16(c). With respect to any such amounts
paid by check to the order of the Special Servicer, the Special Servicer shall
endorse such check to the order of the Master Servicer unless the Special
Servicer determines, consistent with the Servicing Standard, that a particular
item cannot be so endorsed and delivered because of a restrictive endorsement.
Funds in a Whole Loan Custodial Account may be invested only in
Permitted Investments in accordance with the provisions of Section 3.06. The
Master Servicer shall give notice to the Trustee, the Special Servicer, the
Depositor and the related Companion Loan Holder, of the location of each Whole
Loan Custodial Account as of the Closing Date and of the new location of a Whole
Loan Custodial Account prior to any change thereof.
(f) The Master Servicer shall establish and maintain the Interest
Reserve Account in trust for the benefit of the Certificateholders. The Master
Servicer is hereby authorized to make deposits in and withdrawals from the
Interest Reserve Account, in accordance with the terms of this Agreement. The
Interest Reserve Account shall be maintained as a segregated account separate
from other accounts.
(g) If any Loss of Value Payments are received in connection with a
Material Defect or Material Breach, as the case may be, pursuant to or as
contemplated by Section 2.03(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
Distribution Account, the Whole Loan Custodial Accounts and the Excess
Liquidation Proceeds Account.
(a) The Master Servicer may, from time to time, make withdrawals
from the Certificate Account for any of the following purposes (the order set
forth below not constituting an order of priority for such withdrawals):
(i) to remit to the Trustee no later than 1:00 p.m. (New York time)
for deposit into the Distribution Account and the Excess Interest
Distribution Account, the Master Servicer Remittance Amount for, and, to
the extent permitted or required by Section 4.03(a), as applicable, any
P&I Advances to be made on, each Master Servicer Remittance Date;
(ii) to reimburse the Master Servicer 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) of this Section 3.05(a)) being
limited to amounts that represent Late Collections of interest and
principal received in respect of the particular Mortgage Loan or REO Loan
as to which such P&I Advance was made (net of related Master Servicing
Fees and/or Workout Fees) (exclusive of each Mortgage Loan or REO Loan
included in a Whole Loan to the extent such reimbursement was paid out of
collections from the related Whole Loan Custodial Account);
(iii) to pay to the Master Servicer earned and unpaid Master
Servicing Fees in respect of each Mortgage Loan and REO Loan (exclusive of
each Mortgage Loan or REO Loan included in a Whole Loan to the extent such
payment was paid out of collections from the related Whole Loan Custodial
Account), the Master Servicer's right to payment pursuant to this clause
(iii) with respect to any Mortgage Loan or REO Loan (exclusive of each
Mortgage Loan or REO Loan included in a Whole Loan to the extent such
payment was paid out of collections from the related Whole Loan Custodial
Account) being payable from, and limited to, amounts received on or in
respect of such Mortgage Loan (whether in the form of payments,
Liquidation Proceeds, Condemnation Proceeds or Insurance Proceeds) or such
REO Loan (whether in the form of REO Revenues, Liquidation Proceeds or
Insurance Proceeds) that are allocable as a recovery of interest thereon;
(iv) to pay to the Special Servicer, out of general collections on
the Mortgage Loans and any REO Properties, earned and unpaid Special
Servicing Fees in respect of each Specially Serviced Loan and REO Loan
(exclusive of each Mortgage Loan or REO Loan included in a Whole Loan or
any REO Property securing a Whole Loan to the extent such payment was paid
out of collections from the related Whole Loan Custodial Account), out of
general collections on the Mortgage Loans and any 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 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) of this Section 3.05(a)) being limited to (A) payments made
by the related Mortgagor that are allocable to cover the item in respect
of which such Servicing Advance was made, and (B) Insurance Proceeds,
Condemnation Proceeds, Liquidation Proceeds and, if applicable, REO
Revenues received in respect of the particular Mortgage Loan or REO
Property (exclusive of each Mortgage Loan or REO Loan included in a Whole
Loan or any REO Property securing a Whole Loan to the extent such
reimbursement was paid out of collections from the related 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) of this Section 3.05(a)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) of this Section 3.05(a), 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 Loan included in a
Whole Loan or any REO Property securing a Whole Loan to the extent such
reimbursement was paid out of collections from the related Whole Loan
Custodial Account), any related Advance Interest accrued and payable on
the portion of such Advance so reimbursed or being reimbursed;
(x) to pay any outstanding expense, other than Advance Interest,
that was incurred with respect to any Mortgage Loan or related REO Loan
(exclusive of each Mortgage Loan or REO Loan included in a Whole Loan or
any REO Property securing a Whole Loan to the extent such payment was paid
out of collections from the related Whole Loan Custodial Account) and
that, if paid from a source other than Default Charges collected on the
Mortgage Pool, would constitute an Additional Trust Fund Expense, such
payment to be made out of Default Charges collected on the Mortgage Pool,
as and to the extent contemplated by Section 3.27;
(xi) to pay itself any items of Additional Master Servicing
Compensation, and to pay to the Special Servicer any items of Additional
Special Servicing Compensation to which it is entitled, in each case from
funds on deposit in the Certificate Account from time to time;
(xii) to pay any unpaid Liquidation Expenses incurred with respect
to any Mortgage Loan or REO Property (exclusive of each Mortgage Loan or
REO Loan included in a Whole Loan or any REO Property securing a Whole
Loan to the extent such payment was paid out of collections from the
related Whole Loan Custodial Account) such payments to be made, first, out
of payments, Insurance Proceeds, Condemnation Proceeds or Liquidation
Proceeds and, if applicable, REO Revenues received in respect of such
Mortgage Loan or REO Property, as the case may be, and then, out of
general collections on other Mortgage Loans and REO Properties (exclusive
of each Mortgage Loan or REO Loan included in a Whole Loan or any REO
Property securing a Whole Loan to the extent such payment was paid out of
collections from the related Whole Loan Custodial Account);
(xiii) to pay, in accordance with Section 3.11(i), out of general
collections on the Mortgage Loans and any REO Properties (exclusive of
each Mortgage Loan or REO Loan included in a Whole Loan or any REO
Property securing a Whole Loan to the extent such payment was paid out of
collections from the related Whole Loan Custodial Account), certain
servicing expenses that would, if advanced, constitute Nonrecoverable
Servicing Advances;
(xiv) to pay, out of general collections on the Mortgage Loans and
any REO Properties (exclusive of each Mortgage Loan or REO Loan included
in a Whole Loan or any REO Property securing a Whole Loan to the extent
such payment was paid out of collections from the related Whole Loan
Custodial Account), costs and expenses incurred by the Trust Fund pursuant
to Section 3.09(c) (other than the costs of environmental testing, which
are to be covered by, and reimbursable as, a Servicing Advance);
(xv) to pay itself, the Special Servicer, the Depositor, the
Trustee, 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 Loan included in a
Whole Loan or any REO Property securing a Whole Loan to the extent such
payment was paid out of collections from the related 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 each Mortgage Loan or REO Loan included
in a Whole Loan or any REO Property securing a Whole Loan to the extent
such payment was paid out of collections from the related 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 a Whole Loan to the extent such
payment was paid out of collections from the related Whole Loan Custodial
Account), it being acknowledged that this clause (xviii) shall not be
construed to modify any limitation otherwise set forth in this Agreement
on the time at which any Person is entitled to payment or reimbursement of
any amount or the funds from which any such payment or reimbursement is
permitted to be made;
(xix) to pay the Master Servicer, the Special Servicer, the Mortgage
Loan Sellers, a Controlling Class Certificateholder or any other
particular Person, as the case may be, with respect to each Mortgage Loan
(exclusive of each Mortgage Loan included in a Whole Loan), if any,
previously purchased or otherwise removed from the Trust Fund by such
Person pursuant to or as contemplated by this Agreement, all amounts
received thereon subsequent to the date of purchase;
(xx) to transfer Excess Liquidation Proceeds (exclusive of Excess
Liquidation Proceeds received with respect to a Mortgage Loan included in
a Whole Loan) to the Excess Liquidation Proceeds Account in accordance
with Section 3.04(c)(iv);
(xxi) to withdraw any amounts deposited in error; and
(xxii) to clear and terminate the Certificate Account at the
termination of this Agreement pursuant to Section 9.01.
If amounts on deposit in the Certificate Account at any particular
time (after withdrawing any portion of such amounts deposited into the
Certificate Account in error) are insufficient to satisfy all payments,
reimbursements and remittances to be made therefrom as set forth in clauses (ii)
through (xx) of this Section 3.05(a), 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) of this Section 3.05(a)) 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) of this Section 3.05(a),
and any payments of interest thereon out of the Certificate Account pursuant to
either of clauses (viii) and (ix) of this Section 3.05(a), 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
Loans) when appropriate, in connection with any withdrawal from the Certificate
Account pursuant to clauses (ii) through (xx) of this Section 3.05(a) sufficient
to determine the amounts attributable to each Mortgage Loan) 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) of this paragraph, 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) of this paragraph 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 related 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), and to make
distributions to the Class R-I Certificates pursuant to Section
4.01(a)(iii) or Section 9.01, as applicable;
(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 and 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 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 Whole Loan
Remittance Amount, to the Companion Loan Holder and to the
Certificate Account for the benefit of the Trust (as holder of the
related Mortgage Loan or any related REO Loan), in accordance with
the related Intercreditor Agreement, such remittances to the Trustee
to be made into the Distribution Account; provided, however, that
any Liquidation Proceeds relating to the repurchase of the Companion
Loan related to a Whole Loan by the related seller thereof shall be
remitted solely to the related Companion Loan Holder and Liquidation
Proceeds relating to the repurchase of a Mortgage Loan related to a
Whole Loan by the related Mortgage Loan Seller shall be remitted
solely to the Certificate Account; provided, that any Liquidation
Proceeds related to a sale pursuant to Section 3.18 or pursuant to
the related Intercreditor Agreement of a Mortgage Loan included in a
Whole Loan shall be deposited directly into the Certificate Account
and applied solely to pay expenses relating to that Mortgage Loan
and to the Available Distribution Amount, and any Liquidation
Proceeds related to a sale pursuant to Section 3.18 of a Companion
Loan shall be deposited into the related Whole Loan Custodial
Account and applied solely to pay expenses relating to such
Companion Loan and to pay amounts due to the related Companion Loan
Holder;
(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, 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) of this Section 3.05(f)) 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 such Whole Loan and related REO Loan,
the Master Servicer's right to payment pursuant to this clause (iii)
of this paragraph with respect to any Whole Loan or REO Loan being
payable from, and limited to, amounts received on or in respect of
such Whole Loan (whether in the form of payments, Liquidation
Proceeds, Condemnation Proceeds or Insurance Proceeds) or such REO
Loan (whether in the form of REO Revenues, Liquidation Proceeds or
Insurance Proceeds) that are allocable as a recovery of interest
thereon;
(iv) to pay to the Special Servicer, out of general
collections on such Whole Loan and related REO Properties, earned
and unpaid Special Servicing Fees in respect of such Whole Loan and
related REO Properties;
(v) to pay to the Special Servicer earned and unpaid Workout
Fees and Liquidation Fees to which it is entitled pursuant to, and
from the sources contemplated by, Section 3.11(c);
(vi) to reimburse itself, the Special Servicer or the Trustee,
as applicable, for any unreimbursed Servicing Advances with respect
to such Whole Loan or related REO Property made thereby, 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) of this Section 3.05(f)) being limited to (A)
payments made by the related Mortgagor that are allocable to cover
the item in respect of which such Servicing Advance was made, and
(B) Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds
and, if applicable, REO Revenues received in respect of such Whole
Loan or REO Property as to which such Servicing Advance was made;
(vii) to reimburse the Master Servicer, the Special Servicer
or the Trustee, as applicable, out of general collections on such
Whole Loan or REO Property, for any unreimbursed related Advances
made thereby that have been determined to be Nonrecoverable
Advances;
(viii) to pay the Trustee, the Master Servicer, or the Special
Servicer as applicable, any Advance Interest due and owing thereto
out of Default Charges collected on such Whole Loan the portion of
Default Charges allocated thereto in the related Intercreditor
Agreement, 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) of this Section 3.05(f) or
pursuant to Section 3.03, and insofar as payment has not already
been made, and the Default Charges then on deposit in such Whole
Loan Custodial Account is not sufficient to make such payment
pursuant to clause (viii) of this Section 3.05(f), to pay the Master
Servicer, the Special Servicer or the Trustee, as the case may be,
out of general collections on such Whole Loan and related REO
Property, any related Advance Interest accrued and payable on the
portion of such Advance so reimbursed or being reimbursed;
(x) to pay any outstanding expense, other than Advance
Interest, that was incurred with respect to such Whole Loan and
that, if paid from a source other than Default Charges collected on
such Whole Loan, would constitute an Additional Trust Fund Expense,
such payment to be made out of Default Charges collected on such
Whole Loan, as and to the extent contemplated by Section 3.27;
(xi) to pay itself any items of Additional Master Servicing
Compensation, and to pay to the Special Servicer any items of
Additional Special Servicing Compensation to which it is entitled,
in each case with respect to such Whole Loan from funds collected on
such Whole Loan that are on deposit in such Whole Loan Custodial
Account from time to time;
(xii) to pay any unpaid Liquidation Expenses incurred with
respect to such Whole Loan or REO Property, such payments to be
made, first, out of payments, Insurance Proceeds, Condemnation
Proceeds or Liquidation Proceeds and, if applicable, REO Revenues
received in respect of such Whole Loan or REO Property, as the case
may be, and then, out of general collections on such Whole Loan or
REO Property;
(xiii) to pay, in accordance with Section 3.11(i), out of
general collections on such Whole Loan and REO Property, certain
servicing expenses with respect to such Whole Loan that would, if
advanced, constitute Nonrecoverable Servicing Advances;
(xiv) to pay, out of general collections on such Whole Loan
and REO Property, costs and expenses incurred by the related
Companion Loan 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 such Whole Loan or REO Property, any amounts payable
to any such Person pursuant to Section 6.03, Section 7.01(b) or
Section 8.05(b), as applicable, with respect to such Whole Loan;
(xvi) [RESERVED];
(xvii) to pay, out of general collections on such Whole Loan
and REO Property, any reasonable out-of-pocket cost or expense
(including the reasonable fees of tax accountants and attorneys)
incurred by the Trustee pursuant to Section 3.17(b) in connection
with providing advice to the Special Servicer with respect to such
Whole Loan;
(xviii) to pay to the Master Servicer, the Special Servicer,
the Trustee or the Depositor, as the case may be, to the extent that
such amount is related to the Mortgage Loan included in such Whole
Loan, any amount specifically required to be paid to such Person at
the expense of the Trust Fund under any provision of this Agreement
to which reference is not made in any other clause of this Section
3.05(f), it being acknowledged that this clause (xviii) shall not be
construed to modify any limitation otherwise set forth in this
Agreement on the time at which any Person is entitled to payment or
reimbursement of any amount or the funds from which any such payment
or reimbursement is permitted to be made;
(xix) to pay the Master Servicer, the Special Servicer, the
related Mortgage Loan Seller, a Controlling Class Certificateholder
or any other particular Person, as the case may be, (i) with respect
to the Mortgage Loan related to such Whole Loan, if any, previously
purchased or otherwise removed from the Trust Fund by such Person
pursuant to or as contemplated by this Agreement or (ii) with
respect to the Companion Loan related to a Whole Loan purchased by
such Person pursuant to or as contemplated by the related
Intercreditor Agreement or 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 such Whole Loan to the Excess Liquidation
Proceeds Account in accordance with Section 3.04(e);
(xxi) to withdraw any amounts deposited into such Whole Loan
Custodial Account in error; and
(xxii) to clear and terminate such Whole Loan Custodial
Account at the termination of this Agreement pursuant to Section
9.01.
If amounts on deposit in such Whole Loan Custodial Account at any
particular time (after withdrawing any portion of such amounts deposited into
such Whole Loan Custodial Account in error) are insufficient to satisfy all
payments, reimbursements and remittances to be made therefrom as set forth in
clauses (ii) through (xx) of this Section 3.05(f), then the corresponding
withdrawals from such Whole Loan Custodial Account shall be made in the
following priority and subject to the following rules: (A) if the payment,
reimbursement or remittance is to be made from a specific source of funds, then
such payment, reimbursement or remittance shall be made from that specific
source of funds on a pro rata basis with any and all other payments,
reimbursements and remittances to be made from such specific source of funds;
and (B) if the payment, reimbursement or remittance can be made from any funds
on deposit in such Whole Loan Custodial Account, then (following any withdrawals
made from such Whole Loan Custodial Account in accordance with the immediately
preceding clause (A) of this paragraph) such payment, reimbursement or
remittance shall be made from such general funds remaining on a pro rata basis
with any and all other payments, reimbursements or remittances to be made from
such general funds; provided that any reimbursements of Advances in respect of
such Whole Loan or REO Property out of such Whole Loan Custodial Account
pursuant to any of clauses (ii), (vi) and (vii) of this Section 3.05(f), and any
payments of interest thereon out of such Whole Loan Custodial Account pursuant
to either of clauses (viii) and (ix) of this Section 3.05(f), 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 related Intercreditor
Agreement to remit funds thereunder then due and owing to the holder of the
Companion Loan related to such Whole Loan, 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 Companion Loan related to a
Whole Loan, specifically identifying the name, address and contact information
of the transferee if the Master Servicer and the Special Servicer, as
applicable, has actual knowledge of such transferee's name, address and contact
information.
Notwithstanding anything contained in this Agreement to the
contrary, the Master Servicer or the Special Servicer, as applicable, shall be
permitted (but shall have no affirmative obligation whatsoever or be otherwise
required under this Agreement) to structure the time of recoveries of
Nonrecoverable Advances in such a manner as the Master Servicer or the Special
Servicer, as applicable, determines, in accordance with the Servicing Standard,
is in the best interest of the Certificateholders as a collective whole, which
may include being reimbursed for Nonrecoverable Advances in installments over
time.
(g) If any Loss of Value Payments are deposited into the Loss of
Value Reserve Fund with respect to any Loan or any related REO Property, then
the Special Servicer shall, promptly when needed, transfer such Loss of Value
Payments (up to the remaining portion thereof) from the Loss of Value Reserve
Fund to the Master Servicer for deposit into the Certificate Account for the
following purposes:
(i) to reimburse the Master Servicer, the Special Servicer 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 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) of this paragraph in respect of any other Loan
or REO Loan; and
(v) on the final Distribution Date after all distributions have been
made as set forth in clauses (i) through (iv) of this paragraph, to the
related Mortgage Loan Seller to offset any Realized Losses (net of any
amount contributed by such Mortgage Loan Seller that was used pursuant to
clauses (i) through (iv) of this paragraph).
Any Loss of Value Payments transferred to the Certificate Account
pursuant to clauses (i) through (iii) of the prior paragraph shall, except for
purposes of Section 3.11(c), be deemed to constitute Liquidation Proceeds
received by the Trust in respect of the related Loan or any successor REO Loan
with respect thereto for which such Loss of Value Payments were received; and
any Loss of Value Payments transferred to the Certificate Account pursuant to
clause (iv) of the prior paragraph shall, except for purposes of Section
3.11(c), be deemed to constitute Liquidation Proceeds received by the Trust in
respect of the Loan or REO Loan for which such Loss of Value Payments are being
transferred to the Certificate Account to cover an item contemplated by clauses
(i) through (iii) of the prior paragraph.
On the Business Day immediately prior to the Master Servicer
Remittance Date related to the final Distribution Date, the Special Servicer
shall withdraw from the Loss of Value Reserve Fund and transfer to the Master
Servicer, for deposit in the Certificate Account, any Loss of Value Payments
remaining on deposit in the Loss of Value Reserve Fund. Such Loss of Value
Payments so deposited in the Certificate Account shall constitute part of the
Available Distribution Amount for the final Distribution Date, to the extent
needed to distribute to the Holders of the REMIC II Regular 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
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 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 related Companion Loan 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 Whole Loan Custodial
Account and the Servicing Account) and the Special Servicer (with respect to
Permitted Investments of amounts in each REO Account), on behalf of the Trustee
for the benefit of the Certificateholders and in the case of any Investment
Account solely related to a Whole Loan, the related Companion Loan 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 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 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 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 Loan, the Master Servicer shall use
reasonable efforts consistent with the Servicing Standard to cause each
Mortgagor to maintain, and, if the Mortgagor does not so maintain, the Master
Servicer will itself cause to be maintained, for each Mortgaged Property
(including each Mortgaged Property relating to any Specially Serviced Loan) all
insurance coverage as is required, subject to applicable law, under the related
loan documents; provided that, if and to the extent that any such loan documents
permit the holder thereof any discretion (by way of consent, approval or
otherwise) as to the insurance coverage that the related Mortgagor is required
to maintain, the Master Servicer shall exercise such discretion in a manner
consistent with the Servicing Standard and, prior to the date such existing
insurance expires or is required to be renewed, the Master Servicer may, to the
extent consistent with the Servicing Standard, take into account insurance in
place at loan origination, with a view towards requiring insurance comparable to
that required under other Loans with express provisions governing such matters
and including business interruption or rental loss insurance for at least 12
months; and provided, further, the Master Servicer shall be required to maintain
such insurance coverage upon the related Mortgagor's failure to do so only to
the extent that such insurance is available at commercially reasonable rates and
the Trustee, on behalf of the Trust, as mortgagee has an insurable interest.
Subject to Section 3.17(b), the Special Servicer shall also cause to be
maintained for each REO Property no less insurance coverage (to the extent
available at commercially reasonable rates) (A) than was previously required of
the related Mortgagor under the related loan documents and (B), at a minimum,
(i) hazard insurance with a replacement cost rider, (ii) business interruption
or rental loss insurance for at least 12 months, and (iii) commercial general
liability insurance, in each case, in an amount customary for the type and
geographic location of such REO Property and consistent with the Servicing
Standard; provided that all such insurance required to be maintained by Master
Servicer or Special Servicer shall be obtained from Qualified Insurers that, in
each case, shall have a financial strength or claims-paying rating no lower than
two rating categories below the highest rated Certificates outstanding, and in
any event no lower than "A2" from Xxxxx'x and "A" from S&P (or in such other
form and amount or issued by an insurer with such other financial strength or
claims-paying ability as would not, as confirmed in writing by the relevant
Rating Agency, result in an Adverse Rating Event. All such insurance policies
shall contain (if they insure against loss to property) a "standard" mortgagee
clause, with loss payable to the Master Servicer on behalf of the Trustee (in
the case of insurance maintained in respect of the Mortgage Loans), or shall
name the Trustee (and, in the case of a Whole Loan, the related Companion Loan
Holder) as the insured, with loss payable to the Special Servicer on behalf of
the Trustee (and, in the case of a Whole Loan, the related Companion Loan
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 a Whole Loan is involved, the related Whole Loan
Custodial Account, subject to withdrawal pursuant to Section 3.05(a), or Section
3.05(f), as applicable in the case of amounts received in respect of a Loan, or
in the applicable REO Account, subject to withdrawal pursuant to Section
3.16(c), in the case of amounts received in respect of an REO Property. Any cost
incurred by the Master Servicer or Special Servicer in maintaining any such
insurance shall not, for purposes hereof, including calculating monthly
distributions to Certificateholders, be added to unpaid principal balance or
Stated Principal Balance of the related Loan, notwithstanding that the terms of
such Loan so permit; provided, however, that this sentence shall not limit the
rights of the Master Servicer or Special Servicer on behalf of the Trust or, if
a Whole Loan is involved, on behalf of the related Companion Loan Holder, to
enforce any obligations of the related Mortgagor under such Loan. Costs to the
Master Servicer or Special Servicer of maintaining insurance policies pursuant
to this Section 3.07 shall be paid by and reimbursable to the Master Servicer or
the Special Servicer, as the case may be, as a Servicing Advance.
If the related loan documents specifically and expressly set forth
terms requiring insurance coverage against terrorist or similar acts for a Loan,
then the Master Servicer and the Special Servicer shall enforce the terms of the
related loan documents in accordance with the Servicing Standard, and if the
Mortgagor fails to maintain such insurance, such failure shall constitute a
Servicing Transfer Event. To the extent the loan documents do not set forth
specific terms requiring insurance coverage against terrorist or similar acts
and a Loan (x) requires a Mortgagor to maintain insurance policies covering some
or all of the risks contained in the Additional Exclusions or (y) in accordance
with the Servicing Standard, the Master Servicer has determined that the loan
documents permit the lender to require the Mortgagor to maintain insurance
policies covering some or all the risks contained in the Additional Exclusions
(the covered risks required to be covered or that the lender has the discretion
to require to be covered being referred to as "Covered Risks"), the Master
Servicer shall use reasonable efforts in accordance with the Servicing Standard
to determine whether, upon renewal of the Mortgagor's property or casualty
insurance (including any all risk insurance policy), any of the Covered Risks
are excluded from coverage. If any of the Covered Risks are determined by the
Master Servicer to be excluded from coverage, the Master Servicer shall request
the Mortgagor to either (i) purchase insurance acceptable to the Master Servicer
in accordance with the Servicing Standard and in accordance with the related
loan documents covering such Covered Risks or (ii) provide a written explanation
as to its reasons for failing to purchase such insurance. Notwithstanding the
foregoing, with the written consent of the Special Servicer in accordance with
the Servicing Standard the Master Servicer may waive the requirement to procure
insurance covering any of the Covered Risks if the Master Servicer determines in
accordance with the Servicing Standard that (1) insurance covering any such
Covered Risks is not available at a commercially reasonable price, or (2) based
on information reasonably available to the Master Servicer, after due inquiry,
any such Covered Risks are at that time not commonly insured against for
properties similar to the Mortgaged Property and located in or around the region
in which the Mortgaged Property is located unless the Stated Principal Balance
of the Loan is greater than $20,000,000. If the Stated Principal Balance of the
Loan is greater than $20,000,000, then the Master Servicer must determine that
the circumstances in both clauses (1) and (2) of the immediately preceding
sentence apply prior to waiving the Mortgagor's requirement to procure insurance
with respect to any Covered Risks. If the Special Servicer fails to give a
response to the Master Servicer as referenced in the second preceding sentence
within ten Business Days of the Master Servicer initially notifying the Special
Servicer in writing of such request, the Master Servicer shall promptly notify
the Directing Certificateholder of such failure of the Special Servicer to
respond to such request. If the Directing Certificateholder and/or the Special
Servicer have not responded to the Master Servicer within ten Business Days of
the notice referenced in the immediately preceding sentence, the Master Servicer
shall determine in accordance with the Servicing Standard whether to require (or
not require) the Mortgagor to maintain such insurance; provided, that during the
period that the Special Servicer and/or the Directing Certificateholder are
evaluating such insurance, none of the Master Servicer, the Special Servicer
and/or the Directing Certificateholder shall be liable for any loss related to
its failure to require a Mortgagor to maintain terrorism insurance and shall not
be in default of its obligations hereunder as a result of such failure. If the
Master Servicer requires the Mortgagor to maintain such insurance and the
Mortgagor fails to maintain such insurance, to the extent such insurance is then
reasonably available, the Master Servicer shall then procure such insurance in
accordance with the Servicing Standard and such failure by the Mortgagor shall
constitute a Servicing Transfer Event. For purposes of computing whether the
$20,000,000 threshold described herein is met for a particular Loan, if a Loan
is secured by multiple Mortgaged Properties, then the amount subject to the
$20,000,000 threshold shall be the portion of the Stated Principal Balance of
the related Loan pro rated based on an individual Mortgaged Property's appraised
value as a percentage of the total appraised value of all of the related
Mortgaged Properties.
(b) If the Master Servicer or the Special Servicer shall obtain and
maintain, or cause to be obtained and maintained, a blanket policy or master
force placed policy insuring against hazard losses on all of the Loans or REO
Properties, as applicable, that it is required to service and administer
hereunder, then, to the extent such policy (i) is obtained from a Qualified
Insurer having a financial strength or claims-paying rating no lower than "A2"
from Xxxxx'x and "A" from S&P or having such other financial strength or
claims-paying ability rating as would not, as confirmed in writing by the
relevant Rating Agency, result in an Adverse Rating Event and (ii) provides
protection equivalent to the individual policies otherwise required, the Master
Servicer or Special Servicer, as the case may be, shall conclusively be deemed
to have satisfied its obligation to cause hazard insurance to be maintained on
the related Mortgaged Properties or REO Properties, as applicable. Such policy
may contain a deductible clause (not in excess of a customary amount), in which
case the Master Servicer or the Special Servicer, as appropriate, shall, if
there shall not have been maintained on the related Mortgaged Property or REO
Property a hazard insurance policy complying with the requirements of Section
3.07(a), and there shall have been one or more losses that would have been
covered by such an individual policy, promptly deposit into the Certificate
Account from its own funds the amount not otherwise payable under the blanket or
master force placed policy in connection with such loss or losses because of
such deductible clause to the extent that any such deductible exceeds the
deductible limitation that pertained to the related Loan (or, in the absence of
any such deductible limitation, the deductible limitation for an individual
policy that is consistent with the Servicing Standard). The Master Servicer or
the Special Servicer, as appropriate, shall prepare and present, on behalf of
itself, the Trustee and the Certificateholders and, in the case of a Whole Loan,
the related Companion Loan 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 "A2" from
Xxxxx'x and "A" from S&P, a fidelity bond in such form and amount as would
permit it to be a qualified Xxxxxx Mae seller-servicer of multifamily mortgage
loans (or in such other form and amount or issued by an insurer with such other
financial strength or claims-paying ability rating as would not result in an
Adverse Rating Event with respect to any Class of Rated Certificates (as
confirmed in writing to the Trustee by the relevant Rating Agency)). Each of the
Master Servicer and the Special Servicer shall be deemed to have complied with
the foregoing provision if an Affiliate thereof has such fidelity bond coverage
and, by the terms of such fidelity bond, the coverage afforded thereunder
extends to the Master Servicer or the Special Servicer, as the case may be. Such
fidelity bond shall provide that it may not be canceled without ten days' prior
written notice to the Trustee.
Each of the Master Servicer and the Special Servicer shall at all
times during the term of this Agreement (or, in the case of the Special
Servicer, at all times during the term of this Agreement during which Specially
Serviced Loans and/or REO Properties for which it is responsible exist as part
of the Trust Fund) also keep in force with a Qualified Insurer having a
financial strength or claims-paying rating no lower than two rating categories
below the highest rated Certificates outstanding, and in any event no lower than
"A2" from Xxxxx'x and "A" from S&P, a policy or policies of insurance covering
loss occasioned by the errors and omissions of its officers and employees in
connection with its servicing obligations hereunder, which policy or policies
shall be in such form and amount as would permit it to be a qualified Xxxxxx Mae
seller-servicer of multifamily mortgage loans (or in such other form and amount
or issued by an insurer with such other financial strength or claims-paying
rating as would not result in an Adverse Rating Event with respect to any Class
of Rated Certificates (as confirmed in writing to the Trustee by the relevant
Rating Agency)). Each of the Master Servicer and the Special Servicer shall be
deemed to have complied with the foregoing provisions if an Affiliate thereof
has such insurance and, by the terms of such policy or policies, the coverage
afforded thereunder extends to the Master Servicer or the Special Servicer, as
the case may be. Any such errors and omissions policy shall provide that it may
not be canceled without ten days' prior written notice to the Trustee. So long
as the long-term unsecured debt obligations of the Master Servicer or the
Special Servicer (or its direct or indirect parent company), as applicable, are
rated not lower than "A2" from Xxxxx'x and "A" from S&P, the Master Servicer or
Special Servicer, as applicable, may self-insure with respect to either or both
of the fidelity bond coverage and the errors and omissions coverage required as
described above, in which case it shall not be required to maintain an insurance
policy with respect to such coverage.
Section 3.08 Enforcement of Alienation Clauses.
(a) As to each Loan that contains a provision in the nature of a (i)
"due-on-sale" clause (which includes, without limitation, sales or transfers of
the Mortgaged Property (in full or in part) or the sale, transfer, pledge or
hypothecation of direct or indirect interest in the related Borrower or its
owners), which by its terms (1) provides that such Loan shall (or may at the
mortgagee's option) become due and payable upon the sale or other transfer of an
interest in the related Mortgaged Property or of a controlling interest in the
related Mortgagor; (2) provides that such Loan may not be assumed without the
consent of the mortgagee or satisfaction of certain conditions in connection
with any such sale or other transfer, for so long as such Loan is included in
the Trust Fund or (3) provides that such Loan may be assumed or transferred
without the consent of the mortgagee provided that certain conditions set forth
in the related loan documents are satisfied, or (ii) as to each Loan that
contains a provision in the nature of a "due-on-encumbrance" clause (including,
without limitation, any mezzanine financing of the related Borrower or the
related Mortgaged Property or any sale or transfer of preferred equity in such
Borrower or its direct or indirect owners), that by its terms: (1) provides that
such Loan shall (or may at the mortgagee's option) become due and payable upon
the creation of any additional lien or other encumbrance on the related
Mortgaged Property; (2) requires the consent of the mortgagee or satisfaction of
certain conditions to the creation of any such additional lien or other
encumbrance on the related Mortgaged Property; or (3) provides that such Loan
may be further encumbered provided that certain conditions set forth in the loan
documents have been satisfied, each of the Master Servicer and the Special
Servicer shall, on behalf of the Trustee as the mortgagee of record, as to those
Loans it is obligated to service hereunder, exercise (or waive its right to
exercise) any right it may have with respect to such Loan (x) to accelerate the
payments thereon, (y) to withhold its consent to any such sale or other
transfer, in a manner consistent with the Servicing Standard or (z) determine
whether the conditions set forth in clause (a)(i)(3) of this paragraph 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 Section
3.08(a)(i)(3) and Section 3.08 (a)(ii)(3) have been satisfied), unless both the
Master Servicer and the Special Servicer shall have followed the procedures set
forth for those Loans in the manner set forth in the immediately below clauses
(i) through (vi):
(i) The Master Servicer shall not waive any right it has, or grant
any consent that it may otherwise withhold under any related "due-on-sale"
or "due-on-encumbrance" clause (including, but not limited to, making any
determination that the conditions set forth in Section 3.08(a)(i)(3) and
Section 3.08 (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 Performing Loan or (b) for any
Specially Serviced Loan. Consent by the Directing Certificateholder shall
be deemed given if the Special Servicer shall have provided the Directing
Certificateholder written notice of the matter together with all of the
information set forth in the immediately succeeding sentence and the
Directing Certificateholder shall not have responded in writing, via fax
or e mail within ten Business Days of such request. In connection with the
request set forth above, the Special Servicer shall provide to the
Directing Certificateholder written notice of the matter, a written
explanation of the surrounding circumstances, such additional information
as the Directing Certificateholder shall reasonably request and a request
for approval by the Directing Certificateholder.
(iii) [RESERVED].
(iv) [RESERVED].
(v) Notwithstanding the foregoing, solely with respect to the
consent or waiver of any "due-on-sale" clause as described in Section
3.08(a), if any Mortgage Loan has an outstanding principal balance of
greater than $5,000,000 and:
(1) represents greater than 5% of the then outstanding
principal balance of the Mortgage Pool;
(2) has an outstanding principal balance of greater than
$35,000,000; 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 Loan or
waiver of a "due-on-sale" or "due-on-encumbrance" clause thereunder, the Master
Servicer (in the case of a Performing Loan) or the Special Servicer (in the case
of a Specially Serviced Loan) shall prepare all documents necessary and
appropriate for such purposes and shall coordinate with the related Mortgagor
for the due execution and delivery of such documents.
(c) If the Master Servicer or the Special Servicer collects an
assumption fee or an assumption application fee in connection with any transfer
or proposed transfer of any interest in a Mortgagor or a Mortgaged Property,
then the Master Servicer or the Special Servicer, as applicable, will apply that
fee to cover the costs and expenses associated with that transfer or proposed
transfer that are not otherwise paid by the related Mortgagor and that would
otherwise be payable or reimbursable out of the Trust Fund, including any Rating
Agency fees and expenses. Any remaining portion of such assumption fee (such
remaining portion, a "Net Assumption Fee") or of such assumption application fee
(such remaining portion, a "Net Assumption Application Fee") will be applied as
additional compensation to the Master Servicer or the Special Servicer in
accordance with Section 3.11.
Section 3.09 Realization Upon Defaulted Loans.
(a) The Special Servicer shall, subject to Sections 3.09(b),
3.09(c), and 3.09(d), exercise reasonable efforts, consistent with the Servicing
Standard, to foreclose upon or otherwise comparably convert the ownership of
properties and other collateral securing such of the Loans as come into and
continue in default and as to which no satisfactory arrangements can be made for
collection of delinquent payments, including pursuant to Section 3.20; provided
that neither the Master Servicer nor the Special Servicer shall, with respect to
any ARD Loan after its Anticipated Repayment Date, take any enforcement action
with respect to the payment of Excess Interest (other than the making of
requests for its collection) unless (i) the taking of an enforcement action with
respect to the payment of other amounts due under such Loan is, in the good
faith and reasonable judgment of the Special Servicer, and without regard to
such Excess Interest, also necessary, appropriate and consistent with the
Servicing Standard, or (ii) all other amounts due under such Loan have been
paid, the payment of such Excess Interest has not been forgiven in accordance
with Section 3.20 and, in the good faith and reasonable judgment of the Special
Servicer, the Liquidation Proceeds expected to be recovered in connection with
such enforcement action will cover the anticipated costs of such enforcement
action and, if applicable, any associated Advance Interest. In connection with
the foregoing, in the event of a default under any Loan or Cross-Collateralized
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 Loan, whether for purposes of bidding at foreclosure or
otherwise, the Special Servicer is authorized to have an Appraisal completed
with respect to such property (the cost of which appraisal shall be covered by,
and be reimbursable as, a Servicing Advance).
(b) Notwithstanding any other provision of this Agreement, no
Mortgaged Property shall be acquired by the Special Servicer on behalf of the
Trust (and in the case of a Mortgaged Property securing a Whole Loan, on behalf
of the related Companion Loan 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 to the imposition of any federal
income or prohibited transaction taxes under the Code. Subject to the foregoing,
however, a Mortgaged Property may be acquired through a single member limited
liability company. In addition, except as permitted under Section 3.17, the
Special Servicer shall not acquire any personal property on behalf of the Trust
pursuant to this Section 3.09 (with the exception of cash or cash equivalents
pledged as collateral for a Loan) unless either:
(i) such personal property is incident to real property (within the
meaning of Section 856(e)(1) of the Code) so acquired by the Special
Servicer; or
(ii) the Special Servicer shall have obtained an Opinion of Counsel
(the cost of which shall be covered by, and reimbursable as, a Servicing
Advance) to the effect that the holding of such personal property as part
of the Trust Fund will not cause either 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 a Whole Loan, on behalf
of the related Companion Loan 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 a Whole Loan, on behalf of the related Companion Loan 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 the
immediately preceding clause (c)(i) cannot be made, the Special Servicer
has previously determined in accordance with the Servicing Standard, on
the same basis as described in the immediately preceding clause (c)(i),
that it would maximize the recovery to the Certificateholders, or if a
Whole Loan is affected, to the Certificateholders and the related
Companion Loan Holder (as a collective whole), 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 the immediately preceding
clause (c)(i).
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 related Companion Loan Holder
(if a Whole Loan is involved), specifying all of the bases for such
determination, such Officer's Certificate to be accompanied by all related
environmental reports. The cost of such Phase I Environmental Assessment and any
such additional environmental testing shall be advanced by the Master Servicer
at the direction of the Special Servicer given in accordance with the Servicing
Standard; provided, however, that the Master Servicer shall not be obligated in
connection therewith to advance any funds that, if so advanced, would constitute
a Nonrecoverable Servicing Advance. Amounts so advanced shall be subject to
reimbursement as Servicing Advances in accordance with Section 3.05(a). The cost
of any remedial, corrective or other further action contemplated by clause (ii)
of the preceding paragraph shall be payable out of the Certificate Account or,
if a Whole Loan is involved, out of the related Whole Loan Custodial Account,
pursuant to Section 3.05.
(d) If neither of the conditions set forth in clauses (i) and (ii)
of the first paragraph of Section 3.09(c) has been satisfied with respect to any
Mortgaged Property securing a Defaulted Loan, the Special Servicer shall take
such action as is in accordance with the Servicing Standard (other than
proceeding against the Mortgaged Property) and, at such time as it deems
appropriate, may, on behalf of the Trust, and, if a Whole Loan is involved, the
related Companion Loan Holder (as a collective whole), release all or a portion
of such Mortgaged Property from the lien of the related Mortgage.
(e) The Special Servicer shall report to the Trustee, the Master
Servicer, the related Companion Loan Holder (if a Whole Loan is involved), and
the Directing Certificateholder monthly in writing as to any actions taken by
the Special Servicer with respect to any Mortgaged Property as to which neither
of the conditions set forth in clauses (i) and (ii) of the first paragraph of
Section 3.09(c) has been satisfied, in each case until the earliest to occur of
satisfaction of either of such conditions, release of the lien of the related
Mortgage on such Mortgaged Property and the related Loan's becoming a Corrected
Loan.
(f) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standard, the advisability of seeking to obtain a
deficiency judgment if the state in which the Mortgaged Property is located and
the terms of the subject Loan permit such an action and shall, in accordance
with the Servicing Standard, seek such deficiency judgment if it deems
advisable.
(g) Annually in each January, commencing in January 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 Loan as required by Section 6050H of the
Code. All information returns shall be in form and substance sufficient to meet
the reporting requirements imposed by the relevant sections of the Code.
(h) As soon as the Special Servicer makes a Final Recovery
Determination with respect to any Loan or REO Property, it shall promptly notify
the Trustee, the Master Servicer, the Directing Certificateholder and the
related Companion Loan Holder (if a Whole Loan is involved). The Special
Servicer shall maintain accurate records, prepared by a Servicing Officer, of
each such Final Recovery Determination (if any) and the basis thereof. Each such
Final Recovery Determination (if any) shall be evidenced by an Officer's
Certificate delivered to the Trustee and the Master Servicer no later than the
Determination Date following such Final Recovery Determination.
Section 3.10 Trustee to Cooperate; Release of Mortgage Files.
(a) Upon the payment in full of any Loan, or the receipt by the
Master Servicer of a notification that payment in full shall be escrowed in a
manner customary for such purposes, the Master Servicer shall immediately notify
the Trustee and the related Companion Loan Holder (if a Whole Loan is involved),
and request delivery of the related Mortgage File by delivering thereto a
Request for Release in the form of Exhibit D that shall be accompanied by the
form of any release or discharge to be executed by the Trustee. Any such Request
for Release shall include a statement to the effect that all amounts received or
to be received in connection with such payment that are required to be deposited
into the Certificate Account pursuant to Section 3.04(a) have been or will be so
deposited. Upon receipt of such notice and request conforming in all material
respects to the provisions hereof, the Trustee shall promptly release, or cause
any related Custodian to release, the related Mortgage File to the Master
Servicer or Special Servicer, as applicable. If the Mortgage has been recorded
in the name of MERS or its designee, the Master Servicer shall take all
necessary action to reflect the release of the Mortgage on the records of MERS.
No expenses incurred in connection with any instrument of satisfaction or deed
of reconveyance shall be chargeable to the Certificate Account or if a Whole
Loan is involved, the related Whole Loan Custodial Account.
(b) If from time to time, and as appropriate for servicing or
foreclosure of any Loan, the Master Servicer or the Special Servicer shall
otherwise require any Mortgage File (or any portion thereof), then, upon request
of the Master Servicer or the Special Servicer and receipt therefrom of a
Request for Release in the form of Exhibit D attached hereto signed by a
Servicing Officer thereof, the Trustee shall release, or cause any related
Custodian to release, such Mortgage File (or portion thereof) to the Master
Servicer or the Special Servicer, as the case may be. Upon return of such
Mortgage File (or portion thereof) to the Trustee or the related Custodian, or
the delivery to the Trustee of a certificate of a Servicing Officer of the
Special Servicer stating that such Loan was liquidated and that all amounts
received or to be received in connection with such liquidation that are required
to be deposited into the Certificate Account pursuant to Section 3.04(a) or, if
a Whole Loan is involved, into the related Whole Loan Custodial Account pursuant
to Section 3.04(e), have been or will be so deposited, or that such Loan has
become an REO Property, the Request for Release shall be released by the Trustee
to the Master Servicer or the Special Servicer, as applicable.
(c) Within five Business Days of the Special Servicer's request
therefor (or, if the Special Servicer notifies the Trustee of an exigency,
within such shorter period as is reasonable under the circumstances), the
Trustee shall execute and deliver to the Special Servicer, in the form supplied
to the Trustee, as applicable, by the Special Servicer, any court pleadings,
requests for trustee's sale or other documents reasonably necessary to the
foreclosure or trustee's sale in respect of a Mortgaged Property or to any legal
action brought to obtain judgment against any Mortgagor on the Mortgage Note or
Mortgage or to obtain a deficiency judgment, or to enforce any other remedies or
rights provided by the Mortgage Note or Mortgage or otherwise available at law
or in equity or to defend any legal action or counterclaim filed against the
Trust, or if a Whole Loan is involved, against the related Companion Loan
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 a Whole Loan is involved, such documents and pleadings shall also be
delivered by the Special Servicer to the related Companion Loan Holder.
(d) Each of the Master Servicer and the Special Servicer, as
applicable, is authorized for the benefit of the Certificateholders and, if a
Whole Loan is involved, the related Companion Loan 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.
Notwithstanding the foregoing, in the event (a) of any action, suit,
litigation or proceeding naming 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;
provided that the Master Servicer or the Special Servicer, as applicable, shall
retain the right to manage and direct any such action, suit, litigation or
proceeding, (b) of any action, suit, litigation or proceeding, other than an
action, suit, litigation or proceeding relating to the enforcement of the
obligations under the related loan documents, neither the Master Servicer nor
the Special Servicer shall, without the prior written consent of the Trustee,
(i) initiate any action, suit, litigation or proceeding in the name of the
Trustee, whether in such capacity or individually, (ii) engage counsel to
represent the Trustee or (iii) 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 (c) 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, whether as
Trustee or individually; provided that the Master Servicer or the Special
Servicer, as applicable, shall retain the right to manage and direct any such
action, suit, litigation or proceeding.
Section 3.11 Servicing Compensation; Interest on Servicing Advances;
Payment of Certain Expenses; Obligations of the Trustee Regarding Back-up
Servicing Advances.
(a) As compensation for its activities hereunder, the Master
Servicer shall be entitled to receive the Master Servicing Fee with respect to
each Loan (including each Specially Serviced Loan) and each related REO Loan. As
to each such Loan and REO Loan, for each calendar month (commencing with
December 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 Loan, as the case may be, and shall be calculated on the same Interest
Accrual Basis as is applicable for such Loan or REO Loan, as the case may be.
The Master Servicing Fee with respect to any Loan or REO Loan shall cease to
accrue if a Liquidation Event occurs in respect thereof. Master Servicing Fees
earned with respect to any such Loan or REO Loan shall be payable monthly from
payments of interest on such Loan or REO Revenues allocable as interest on such
REO Loan, as the case may be. The Master Servicer shall be entitled to recover
unpaid Master Servicing Fees in respect of any Loan or REO Loan out of the
portion of any related Insurance Proceeds, Condemnation Proceeds or Liquidation
Proceeds allocable as interest on such Loan or REO Loan, as the case may be. The
right to receive the Master Servicing Fee may not be transferred in whole or in
part except in connection with the transfer of all of the Master Servicer's
responsibilities and obligations under this Agreement and except as otherwise
expressly provided in the following paragraph.
(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 related
Companion Loan Holder (in the case of a Whole Loan under the related
Intercreditor Agreement) (the following items, collectively, "Additional Master
Servicing Compensation"):
(i) any and all Net Default Charges, Net Assumption Application
Fees, Net Modification Application Fees and earnout fees collected with
respect to a Performing Loan;
(ii) 50% of any and all Net Assumption Fees actually paid by a
Mortgagor with respect to a Performing Loan;
(iii) 50% of any and all Net Modification Fees, extension fees,
consent fees and waiver fees actually paid by a Mortgagor with respect to
a Performing Loan for which Special Servicer approval is required;
(iv) any and all charges for beneficiary statements or demands,
amounts collected for checks returned for insufficient funds and other
loan processing fees actually paid by a Mortgagor with respect to a
Performing Loan 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 a Performing
Loan.
Notwithstanding the foregoing with respect to any 50% sharing of
fees referenced in this Section 3.11(b), the Master Servicer shall be entitled
to all such fees if with respect to the activity related to any such fee the
Master Servicer is not required to seek the consent and/or approval of the
Special Servicer pursuant to this Agreement.
To the extent that any of the amounts described in the preceding
paragraph are collected by the Special Servicer, the Special Servicer shall
promptly pay such amounts to the Master Servicer.
(c) As compensation for its activities hereunder, the Special
Servicer shall be entitled to receive monthly the Special Servicing Fee with
respect to each Specially Serviced Loan and each REO Loan for which it is
responsible. As to each Specially Serviced Loan and REO Loan, for any particular
calendar month or applicable portion thereof, the Special Servicing Fee shall
accrue at the Special Servicing Fee Rate on the same principal amount as
interest accrues from time to time during such calendar month (or portion
thereof) on such Specially Serviced Loan or is deemed to accrue from time to
time during such calendar month (or portion thereof) on such REO Loan, as the
case may be, and shall be calculated on the same Interest Accrual Basis as is
applicable for such Specially Serviced Loan or REO Loan, as the case may be. The
Special Servicing Fee with respect to any Specially Serviced Loan or REO Loan
shall cease to accrue as of the date a Liquidation Event occurs in respect
thereof or, in the case of a Specially Serviced Loan, as of the date it becomes
a Corrected Loan. Earned but unpaid Special Servicing Fees with respect to
Specially Serviced Loans and REO Loans shall be payable monthly out of general
collections on the Loans and any REO Properties on deposit in the Certificate
Account pursuant to Section 3.05(a); provided, however, if a Whole Loan is
involved, first out of funds on deposit in the related Whole Loan Custodial
Account pursuant to Section 3.05(f).
As further compensation for its activities hereunder, the Special
Servicer shall be entitled to receive the Workout Fee with respect to each
Corrected Loan. As to each Corrected Loan, the Workout Fee shall be payable out
of, and shall be calculated by application of the Workout Fee Rate to, each
payment of interest (other than Default Interest and Excess Interest) and
principal received from the related Mortgagor on such Loan for so long as it
remains a Corrected Loan. The Workout Fee with respect to any such Corrected
Loan will cease to be payable if a new Servicing Transfer Event occurs with
respect thereto or if the related Mortgaged Property becomes an REO Property;
provided that a new Workout Fee would become payable if and when the subject
Loan again became a Corrected Loan. If the Special Servicer is terminated,
including pursuant to Section 3.23, or resigns in accordance with Section 6.04,
it shall retain the right to receive any and all Workout Fees payable in respect
of (i) any Loans serviced by it that became Corrected Loans during the period
that it acted as Special Servicer and that were still Corrected Loans at the
time of such termination or resignation and (ii) any Specially Serviced Loans
for which such Special Servicer has resolved the circumstances and/or conditions
causing any such Loan to be a Specially Serviced Loan, but that had not as of
the time the Special Servicer was terminated become a Corrected Loan solely
because the related Mortgagor had not made three consecutive timely Monthly
Payments and that subsequently becomes a Corrected Loan as a result of the
related Mortgagor making such three consecutive timely monthly payments (and the
successor to the Special Servicer shall not be entitled to any portion of such
Workout Fees), in each case until the Workout Fee for any such loan ceases to be
payable in accordance with the preceding sentence; provided that, in the case of
any Specially Serviced Loan described in clause (ii) of this sentence, the
terminated Special Servicer shall immediately deliver the related Servicing File
to the Master Servicer, and the Master Servicer shall (without further
compensation) monitor that all conditions precedent to such Loan's becoming a
Corrected Loan are satisfied and, further, shall immediately transfer such
Servicing File to the new Special Servicer if and when it becomes apparent to
the Master Servicer that such conditions precedent will not be satisfied.
As further compensation for its activities hereunder, the Special
Servicer shall also be entitled to receive a Liquidation Fee with respect to
each Specially Serviced Loan or REO Loan as to which it receives any full,
partial or discounted payoff from the related Mortgagor or any Insurance
Proceeds, Condemnation Proceeds or Liquidation Proceeds. Notwithstanding the
foregoing and for the avoidance of doubt, no Liquidation Fee shall be payable in
connection with (a) the purchase of a Defaulted 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 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 holder of a subordinate note or a Mezzanine
Loan pursuant to a purchase option contained in the related intercreditor
agreement unless such purchase occurs or purchase right is exercised more than
90 days from the date that the Special Servicer has initially determined the
fair value of the Mortgage Loan, (c) the purchase option of the Majority
Certificateholder of the Controlling Class, the Master Servicer or the Special
Servicer pursuant to Section 9.01, or (d) the repurchase by the related Mortgage
Loan Seller of a Mortgage Loan so required to be repurchased by it pursuant to
Section 4 of the related Mortgage Loan Purchase and Sale Agreement and Section
2.03 within the time frame set forth in the Initial Resolution Period and/or the
Resolution Extension Period (if applicable); provided that such purchase occurs
within 90 days after the date that such Mortgage Loan Seller was first notified
of its obligation to repurchase such Loan. As to each such Specially Serviced
Loan or REO Loan, the Liquidation Fee shall be payable out of, and shall be
calculated by application of the Liquidation Fee Rate to, any such full, partial
or discounted payoff, Condemnation Proceeds and/or Liquidation Proceeds received
or collected in respect thereof (other than any portion of such payment or
proceeds that represents Default Charges, Excess Interest or a Prepayment
Premium). The Liquidation Fee with respect to any such Specially Serviced Loan
will not be payable if such Loan becomes a Corrected Loan.
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 related
Companion Loan Holder (in the case of a Whole Loan under the related
Intercreditor Agreement) (the following items, collectively, the "Additional
Special Servicing Compensation"):
(i) any and all Net Default Charges collected with respect to a
Specially Serviced Loan or an REO Loan;
(ii) any and all Net Assumption Fees, Net Assumption Application
Fees, Net Modification Fees, Net Modification Application Fees, extension
fees, consent fees, waiver fees, earnout fees, substitution fees, late
payment charges and charges for beneficiary statements or demands that are
actually received on or with respect to a Specially Serviced Loan or an
REO Loan;
(iii) 50% of any and all Net Assumption Fees, modification fees,
extension fees, consent fees and waiver fees that are actually received on
or with respect to a Performing Loan;
(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 a Performing Loan.
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 a Whole Loan is involved, in the related 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 related Whole Loan Custodial Account, the Reserve Accounts or an
REO Account, and neither the Master Servicer nor the Special Servicer shall be
entitled to reimbursement for any such expense incurred by it except as
expressly provided in this Agreement. If the Master Servicer is required to make
any Servicing Advance hereunder at the direction of the Special Servicer in
accordance with Section 3.03(c), Section 3.19 or otherwise, the Special Servicer
shall promptly provide the Master Servicer with such documentation regarding the
subject Servicing Advance as the Master Servicer may reasonably request.
(f) If the Master Servicer 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 the Companion Loan related to a Whole Loan, if applicable;
and (ii) then, after such Advance is reimbursed, but only if and to the extent
that such Default Charges are insufficient to cover such Advance Interest, out
of general collections on the Mortgage Loans and REO Properties on deposit in
the Certificate Account or if a Whole Loan or related REO Property is involved,
on deposit in the related Whole Loan Custodial Account. The Master Servicer
shall reimburse itself, the Special Servicer 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 a Whole Loan
is involved, are deposited into the related Whole Loan Custodial Account.
Notwithstanding anything herein to the contrary, no interest shall be payable
with respect to any P&I Advance of a payment due on a 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 related Companion
Loan Holder (if a Whole Loan is involved and the Trustee has knowledge of such
Companion Loan Holder), 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 a Whole Loan is involved, the related Whole
Loan Custodial Account, in accordance with Section 3.05, any servicing expense
that, if paid by the Master Servicer or the Special Servicer, would constitute a
Nonrecoverable Servicing Advance; provided that the Master Servicer (or the
Special Servicer, if a Specially Serviced Loan or an REO Property is involved)
has determined in accordance with the Servicing Standard that making such
payment is in the best interests of the Certificateholders, or if a Whole Loan
is affected, the interests of the Certificateholders and the related Companion
Loan Holder (as a collective whole), as evidenced by an Officer's Certificate
delivered promptly to the Depositor and the Trustee, which shall provide a copy
thereof to the Directing Certificateholder the related Companion Loan Holder (if
a Whole Loan is involved and the Trustee has knowledge of such Companion Loan
Holder), setting forth the basis for such determination and accompanied by any
information that such Person may have obtained that supports such determination.
A copy of any such Officer's Certificate (and accompanying information) of the
Master Servicer shall also be delivered promptly to the Special Servicer, and a
copy of any such Officer's Certificate (and accompanying information) of the
Special Servicer shall also be promptly delivered to the Master Servicer.
Section 3.12 Inspections; Collection of Financial Statements.
(a) The Special Servicer shall perform or cause to be performed a
physical inspection of a Mortgaged Property as soon as practicable (but in any
event not later than 60 days) after the related Loan becomes a Specially
Serviced Loan (and, in cases where the related Loan has become a Specially
Serviced Loan, the Special Servicer shall continue to perform or cause to be
performed a physical inspection of the subject Mortgaged Property at least once
per calendar year thereafter for so long as the related Loan 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 Sellers,
the Directing Certificateholder, the related Companion Loan Holder (if a Whole
Loan is involved and the Trustee has knowledge of such Companion Loan Holder),
any Certificateholder or, if the Trustee has in accordance with Section 5.06(b)
confirmed the Ownership Interest in Certificates held thereby, any Certificate
Owner, a copy (or image in suitable electronic media) of each such written
report prepared by the Master Servicer or the Special Servicer.
(b) Commencing with respect to the calendar quarter ended March
2007, the Special Servicer, in the case of any Specially Serviced Loan, and the
Master Servicer, in the case of each Performing Loan, shall make reasonable
efforts to collect promptly (and, in any event, shall attempt to collect within
45 days following the end of the subject quarter or 120 days following the end
of the subject year) from each related Mortgagor quarterly and annual operating
statements, budgets and rent rolls of the related Mortgaged Property, and
quarterly and annual financial statements of such Mortgagor, to the extent
required pursuant to the terms of the related Mortgage. In addition, the Special
Servicer shall cause quarterly and annual operating statements, budgets and rent
rolls to be regularly prepared in respect of each REO Property and shall collect
all such items promptly following their preparation. The Special Servicer shall
deliver copies (or images in suitable electronic media) of all of the foregoing
items so collected or obtained by it to the Master Servicer within 30 days of
its receipt thereof.
Within 60 days after receipt by the Master Servicer from the related
Mortgagors or otherwise, as to Performing Loans, and within 45 days after
receipt by the Special Servicer or otherwise, as to Specially Serviced Loans and
REO Properties, of any annual operating statements or rent rolls with respect to
any Mortgaged Property or REO Property, the Master Servicer (or the Special
Servicer, with respect to any Specially Serviced Loan or REO Property) shall,
based upon such operating statements or rent rolls, prepare (or, if previously
prepared, update) the related CMSA Operating Statement Analysis Report
commencing March 31, 2007. The Master Servicer also shall deliver to the
Directing Certificateholder (in hard copy or electronic format, as requested)
copies of all such rent rolls and operating statements. The Special Servicer
shall remit a copy of each CMSA Operating Statement Analysis Report prepared or
updated by it (within ten days following the initial preparation and each update
thereof), together with, if so requested, the underlying operating statements
and rent rolls, to the Master Servicer in a format reasonably acceptable to the
Master Servicer and the Trustee. All CMSA Operating Statement Analysis Reports
relating to Performing Loans 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 related Companion Loan Holder
(if a Whole Loan is involved and the Trustee has knowledge of such Companion
Loan Holder), 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 related Companion Loan Holder upon its request (if
the related Whole Loan is involved), a CMSA NOI Adjustment Worksheet for such
Mortgaged Property or REO Property, together with, if so requested, the related
operating statements (in an electronic format reasonably acceptable to the
Trustee and the Special Servicer) commencing March 31, 2007.
If, with respect to any Loan (other than a Specially Serviced Loan),
the Special Servicer has any questions for the related Mortgagor based upon the
information received by the Special Servicer pursuant to Section 3.12(a) or
3.12(b), the Master Servicer shall, in this regard and without otherwise
changing or modifying its duties hereunder, reasonably cooperate with the
Special Servicer in assisting the Special Servicer to contact and solicit
information from such Mortgagor.
(c) Not later than 2:00 p.m. (New York City time) on the first
Business Day following each Determination Date, the Special Servicer shall
prepare and deliver or cause to be delivered to the Master Servicer, the
Directing Certificateholder, the related Companion Loan Holder (if a Whole Loan
is involved), the CMSA Special Servicer Loan File (which, in each case, if
applicable, will identify each Loan by loan number and property name). 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 related Companion Loan Holder (if the related Whole Loan is
involved), in a computer-readable medium downloadable by the Trustee, the
Special Servicer, the Directing Certificateholder, the related Companion Loan
Holder (if the related Whole Loan is involved) (or, in the case of the Trustee,
at the Trustee's written request, in a form reasonably acceptable to the
recipient, including on a loan-by-loan basis), each of the files and reports
listed in the definition of "CMSA Investor Reporting Package" (other than the
CMSA Bond Level File and the CMSA Collateral Summary File, which are prepared by
the Trustee), providing the most recent information with respect to the Mortgage
Pool as of the related Determination Date (and which, in each case, if
applicable, will identify each subject Loan by loan number and property name).
The Master Servicer may, but is not required to, make any of the
reports or files comprising the CMSA Investor Reporting Package (other than the
CMSA Bond Level File and the CMSA Collateral Summary File, which are prepared by
the Trustee) available each month on the Master Servicer's website; provided,
that the Master Servicer shall e-mail such reports or files to the Directing
Certificateholder and the related Companion Loan Holder (if a Whole Loan is
involved), until the Master Servicer's website is established. In connection
with providing access to the Master Servicer's website, the Master Servicer may
require registration and the acceptance of a disclaimer and otherwise (subject
to the preceding sentence) adopt reasonable rules and procedures, which may
include, to the extent the Master Servicer deems necessary or appropriate,
conditioning access on execution of an agreement governing the availability, use
and disclosure of such information, and which may provide indemnification to the
Master Servicer for any liability or damage that may arise therefrom.
(e) The Special Servicer shall deliver to the Master Servicer the
reports set forth in Section 3.12(b) and Section 3.12(c), and the Master
Servicer shall deliver to the Trustee and the Special Servicer the reports set
forth in Section 3.12(d), in an electronic format reasonably acceptable to the
Special Servicer, the Master Servicer and the Trustee. The Master Servicer may,
absent manifest error, conclusively rely on the reports to be provided by the
Special Servicer pursuant to Section 3.12(b) and Section 3.12(c). The Trustee
may, absent manifest error, conclusively rely on the reports to be provided by
the Master Servicer pursuant to Section 3.12(d). In the case of information or
reports to be furnished by the Master Servicer to the Trustee pursuant to
Section 3.12(d), to the extent that such information or reports are, in turn,
based on information or reports to be provided by the Special Servicer pursuant
to Section 3.12(b) or Section 3.12(c) and to the extent that such reports are to
be prepared and delivered by the Special Servicer pursuant to Section 3.12(b) or
Section 3.12(c), the Master Servicer shall have no obligation to provide such
information or reports to the Trustee until it has received the requisite
information or reports from the Special Servicer, and the Master Servicer shall
not be in default hereunder due to a delay in providing the reports required by
Section 3.12(d) caused by the Special Servicer's failure to timely provide any
information or report required under Section 3.12(b) or Section 3.12(c).
(f) Notwithstanding the foregoing, however, the failure of the
Master Servicer or the Special Servicer to disclose any information otherwise
required to be disclosed by this Section 3.12 shall not constitute a breach of
this Section 3.12 to the extent the Master Servicer or the Special Servicer so
fails because such disclosure, in the reasonable belief of the Master Servicer
or the Special Servicer, as the case may be, would violate any applicable law or
any provision of a loan document prohibiting disclosure of information with
respect to the Loans or Mortgaged Properties or would constitute a waiver of the
attorney-client privilege on behalf of the Trust. The Master Servicer and the
Special Servicer may disclose any such information or any additional information
to any Person so long as such disclosure is consistent with applicable law, the
related loan documents and the Servicing Standard. The Master Servicer or the
Special Servicer may affix to any information provided by it any disclaimer it
deems appropriate in its reasonable discretion (without suggesting liability on
the part of any other party hereto).
(g) The Depositor shall provide to the Master Servicer and the
Trustee the initial data (as of the respective Due Dates for the Loans in
November 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 each Mortgage Loan Seller to prepare (or
cause to be prepared on its behalf) a CMSA Loan Set-Up File.
(h) If the Master Servicer or the Special Servicer is required to
deliver any statement, report or information under any provision of this
Agreement, the Master Servicer or the Special Servicer, as the case may be, may
satisfy such obligation by (x) physically delivering a paper copy of such
statement, report or information, (y) delivering such statement, report or
information in a commonly used electronic format or (z) making such statement,
report or information available on the Master Servicer's internet website or the
Trustee's Website, unless this Agreement expressly specifies a particular method
of delivery. Notwithstanding the foregoing, the Trustee may request delivery in
paper format of any statement, report or information required to be delivered to
the Trustee and clause (z) of this paragraph 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].
Section 3.14 [RESERVED].
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 related Companion Loan Holder (if a 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
related Companion Loan Holder (if a 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 document or, in the case of a Whole Loan, any
document relating to the related Companion Loan prohibiting disclosure of
information with respect to the Mortgage Loans, the Companion Loan related to a
Whole Loan 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 and if a Whole Loan is affected, the related Companion
Loan Holder or, subject to Section 3.09(b), to a single member limited liability
company of which the Trust is the sole member, which limited liability company
is formed or caused to be formed by the Special Servicer at the expense of the
Trust for the purpose of taking title to one or more REO Properties pursuant to
this Agreement. The limited liability company shall be (i) disregarded as an
entity separate from the Trust pursuant to Treasury Regulations Section
301.7701-3(b), and (ii) a manager-managed limited liability company, with the
Special Servicer to serve as the initial manager to manage the property of the
limited liability company, including any applicable REO Property, in accordance
with the terms of this Agreement as if such property was held directly in the
name of the Trust or Trustee under this Agreement. The Special Servicer, on
behalf of the Trust (and, in the case of a Whole Loan, on behalf of the related
Companion Loan Holder), shall sell any REO Property by the end of the third
calendar year following the year in which the Trustee on behalf of the
Certificateholders and, if applicable, the related Companion Loan 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 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 "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
related Companion Loan 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 a Whole Loan is involved, the related Companion
Loan 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. Alternately, the
Special Servicer may direct that any such REO Revenues be deposited directly
with the Master Servicer to be held with respect to such REO Loan.
(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 Whole Loan Custodial Account, as
applicable, or deliver to the Master Servicer (which shall deposit such amounts
into the Certificate Account or the applicable Whole Loan Custodial Account, as
applicable), the aggregate of all amounts received in respect of each such REO
Property during such Collection Period, net of any withdrawals made out of such
amounts pursuant to the preceding sentence; provided that the Special Servicer
may retain in the applicable REO Account such portion of such proceeds and
collections as may be necessary to maintain a reserve of sufficient funds for
the proper operation, management, leasing, maintenance and disposition of any
such REO Property (including the creation of a reasonable reserve for repairs,
replacements, necessary capital improvements and other related expenses), such
reserve not to exceed an amount sufficient to cover such items reasonably
expected to be incurred during the following 12-month period. For purposes of
the foregoing, the Pool REO Account and a Whole Loan REO Account correspond to
the Certificate Account and the related Whole Loan Custodial Account,
respectively.
(d) The Special Servicer shall keep and maintain separate records,
on a property-by-property basis, for the purpose of accounting for all deposits
to, and withdrawals from, an REO Account pursuant to Section 3.16(b) or (c).
Section 3.17 Management of REO Property.
(a) If title to any REO Property is acquired, the Special Servicer
shall manage, conserve, protect, operate and lease such REO Property for the
benefit of the Certificateholders (and, in the case of a Whole Loan for the
benefit of the related Companion Loan 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 a Whole Loan for the benefit of the
related Companion Loan Holder, as a collective whole) (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 a
Whole Loan is affected, the interests of the Certificateholders and the related
Companion Loan Holder (as a collective whole), on a net after-tax basis as
compared with net leasing such REO Property or operating such REO Property on a
different basis. In connection therewith, the Special Servicer shall deposit or
cause to be deposited on a daily basis (and in no event later than the second
Business Day following receipt of such funds), in the applicable REO Account all
revenues received by it with respect to each such REO Property and the related
REO Loan, and shall withdraw from the applicable REO Account, to the extent of
amounts on deposit therein with respect to such REO Property, funds necessary
for the proper operation, management, leasing, maintenance and disposition of
such REO Property, including, without limitation:
(i) all insurance premiums due and payable in respect of such REO
Property;
(ii) all real estate taxes and assessments in respect of such REO
Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property, if
applicable; and
(iv) all costs and expenses necessary to maintain, lease and dispose
of such REO Property.
To the extent that amounts on deposit in the REO Account in respect
of any such REO Property are insufficient for the purposes set forth in clauses
(i) through (iv) of this Section 3.17(a) 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 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 a Whole Loan is involved, in which case
such fees shall be netted out of collections on the REO Property prior to
being remitted to the Special Servicer) shall be reasonable and customary
in light of the nature and locality of the REO Property;
(iii) any such contract shall require, or shall be administered to
require, that the Independent Contractor (A) pay all costs and expenses
incurred in connection with the operation and management of such REO
Property, including, without limitation, those listed in Section 3.17(a),
and (B) remit all related revenues collected (net of its fees and such
costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(c) relating to any
such contract or to actions taken through any such Independent Contractor
shall be deemed to relieve the Special Servicer of any of its duties and
obligations hereunder with respect to the operation and management of any
such REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to
the same extent as if it alone were performing all duties and obligations
in connection with the operation and management of such REO Property.
The Special Servicer shall be entitled to enter into any agreement
with any Independent Contractor performing services for it related to its duties
and obligations hereunder for indemnification of the Special Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification. To the extent the costs of any contract with an
Independent Contractor for the operation and maintenance of any REO Property are
greater than the revenues from such REO Property, such excess costs shall be
covered by and reimbursable as a Servicing Advance.
(d) When and as necessary, the Special Servicer shall send to the
Trustee and the Master Servicer a statement prepared by the Special Servicer
setting forth the amount of net income or net loss, as determined for federal
income tax purposes, resulting from the operation and management of a trade or
business on, the furnishing or rendering of a non customary service to the
tenants of, or the receipt of any other amount not constituting Rents from Real
Property in respect of, any REO Property in accordance with Sections 3.17(a) and
3.17(b).
Section 3.18 Resolution of Defaulted 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, or, in the case of a Whole Loan pursuant to
the terms of the related 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 Loan, the Special Servicer shall
determine the fair value of such Defaulted 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 Loan; provided, further, the Special Servicer shall use reasonable
efforts promptly to obtain an Appraisal with respect to the related Mortgaged
Property unless it has an Appraisal that is less than 12 months old and has no
actual knowledge of, or notice of, any event that in the Special Servicer's
judgment would materially affect the validity of such Appraisal. The Special
Servicer shall make its fair value determination as soon as reasonably
practicable (but in any event within 30 days) after its receipt of such new
Appraisal, if applicable. The Special Servicer will, from time to time, but not
less often than every 90 days, adjust its fair value determination based upon
changed circumstances, new information and other relevant factors, if any, in
each instance in accordance with the Servicing Standard. The Special Servicer
shall notify the Trustee, the Master Servicer, the Majority Certificateholder of
the Controlling Class and the related Companion Loan Holder, if a Mortgage Loan
included in any Whole Loan is involved, promptly upon its fair value
determination and any adjustment thereto. The Special Servicer shall also
deliver to the Master Servicer, the Majority Certificateholder of the
Controlling Class and the related Companion Loan Holder, if a Mortgage Loan
included in any Whole Loan is involved, the most recent Appraisal of the related
Mortgaged Property then in the Special Servicer's possession, together with such
other third-party reports and other information then in the Special Servicer's
possession that the Special Servicer reasonably believes to be relevant to the
fair value determination with respect to such Mortgage Loan (such materials are,
collectively, the "Determination Information"). Notwithstanding the foregoing,
the Special Servicer shall not be required to deliver the Determination
Information to the Master Servicer, and shall instead deliver the Determination
Information to the Trustee, if the Master Servicer will not be determining
whether the Option Price represents fair value for the Defaulted 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 Loan, the Special
Servicer shall take into account, among other factors, the period and amount of
the delinquency on such Defaulted 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 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 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 Loan,
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 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 Loan whether recovered or unrecovered from the
related Mortgagor or (B) if the Special Servicer has determined the fair value
of such Defaulted 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 (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 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 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 Loan.
Any Option Holder may sell, transfer, assign or otherwise convey its
Purchase Option with respect to any Defaulted Loan to any party (other than a
Person whose acquisition of the Defaulted Loan would violate the terms of any
related intercreditor or similar agreement) at any time after the related
Mortgage Loan becomes a Defaulted Loan. The transferor of any Purchase Option
shall notify the Trustee and the Master Servicer of such transfer and such
notice shall include the transferee's name, address, telephone number, facsimile
number and appropriate contact person(s) and shall be acknowledged in writing by
the transferee.
Notwithstanding the foregoing, the Majority Certificateholder of the
Controlling Class shall have the right to exercise its Purchase Option prior to
any exercise of the Purchase Option by the Special Servicer; provided, however,
if the Purchase Option is not exercised by the Majority Certificateholder of the
Controlling Class or any assignee thereof within 60 days of a Mortgage Loan
becoming a Defaulted Loan, then the Special Servicer shall have the right to
exercise its Purchase Option prior to any exercise by the Majority
Certificateholder of the Controlling Class and the Special Servicer or its
assignee may exercise such Purchase Option at any time during the 30-day period
immediately following the expiration of such 60-day period. Following the
expiration of each such 30-day period, the Majority Certificateholder of the
Controlling Class shall again have the exclusive right to exercise the Purchase
Option.
Each Option Holder's Purchase Option with respect to any Defaulted
Loan, if not exercised, will automatically terminate (A) once the related
Defaulted Loan is no longer a Defaulted Loan; provided, however, that if such
Mortgage Loan subsequently becomes a Defaulted 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 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 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 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 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
Loan, the Master Servicer may obtain an opinion as to the fair value of such
Defaulted 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 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
Loan, the Trustee may obtain an opinion as to the fair value of such Defaulted
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 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 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 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 Loan is exercised, the Special Servicer shall pursue such other
resolution strategies with respect to such Defaulted 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 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 and the related
Companion Loan Holder (if a 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 Affiliates) 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 Affiliates) 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 Affiliates)
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 Loan effecting such
purchase (or any designee thereof) ownership of such Defaulted Loan. In
connection with any such purchase, the Special Servicer shall deliver the
related Servicing File to the purchaser of such Defaulted 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
Loan or REO Property, and the collection of all amounts payable in connection
therewith. In connection therewith, the Special Servicer may charge prospective
offerors, and may retain, fees that approximate the Special Servicer's actual
costs in the preparation and delivery of information pertaining to such sales or
evaluating offers without obligation to deposit such amounts into the
Certificate Account or if a Whole Loan is involved, in the related Loan
Custodial Account, provided no such fees and charges shall be charged by the
Special Servicer to the Controlling Class Option Holder or any assignee in
connection with the sale of Defaulted Loans. Any sale of a Defaulted 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) [RESERVED].
(m) Notwithstanding anything to the contrary herein, 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. Any purchase of a Specially Serviced Loan that is purchased
pursuant to this Section 3.18 will remain subject to the purchase rights of, in
each case if applicable, the related Mezzanine Lender, if any, as set forth in
the related Mezzanine Intercreditor Agreement.
Section 3.19 Additional Obligations of the Master Servicer and the
Special Servicer.
(a) The Master Servicer shall maintain at its Primary Servicing
Office and shall, upon reasonable advance written notice, make available for
review by each Rating Agency and by any Certificateholder or Certificate Owner
or any Person identified to the Master Servicer as a prospective transferee of a
Certificate or an interest therein, copies of the Servicing Files; provided
that, if the Master Servicer in its reasonable, good faith determination
believes that any item of information contained in such Servicing Files is of a
nature that it should be conveyed to all Certificateholders at the same time, it
shall, as soon as reasonably possible following its receipt of any such item of
information, disclose such item of information to the Trustee as part of the
reports to be delivered to the Trustee by the Master Servicer pursuant to
Section 4.02(b), and until the Trustee has either disclosed such information to
all Certificateholders in a Distribution Date Statement or has properly filed
such information with the Commission on behalf of the Trust under the Exchange
Act, the Master Servicer shall be entitled to withhold such item of information
from any Certificateholder or Certificate Owner or prospective transferee of a
Certificate or an interest therein; and provided, further, 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 Whole Loan (each such Mortgage Loan or
Whole Loan and any related REO Loan, until it ceases to be such in accordance
with the following paragraph, a "Required Appraisal Loan"), the Special Servicer
shall obtain (or, if such Required Appraisal 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 related Companion Loan Holder related to a Whole Loan (subject to Section
12.10(b)) and any Holder of a Non-Registered Certificate (other than a Class V,
Class R-I or Class R-II Certificate subject to Section 12.10(b)). 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 related Companion Loan Holder related to a Whole Loan (subject to Section
12.10(b)) and any Holder of a Non-Registered Certificate (other than a Class V,
Class R-I or Class R-II Certificate subject to Section 12.10(b)), the then
applicable Appraisal Reduction Amount, if any, with respect to the subject
Required Appraisal Loan.
For so long as any Loan or REO Loan remains a Required Appraisal
Loan, the Special Servicer shall, within 30 days of each anniversary of such
loan's having become a Required Appraisal Loan, obtain (or, if such Required
Appraisal Loan has a Stated Principal Balance of $2,000,000 or less, at its
discretion, conduct) an update of the prior Appraisal, and shall deliver a copy
of such update to the Trustee, the Master Servicer, the Directing
Certificateholder, the related Companion Loan Holder related to a Whole Loan
(subject to Section 12.10(b)) and any Holder of a Non-Registered Certificate
(other than a Class V, Class R-I or Class R-II Certificate subject to Section
12.10(b)). If such update is obtained from a Qualified Appraiser, the cost
thereof shall be covered by, and be reimbursable as, a Servicing Advance.
Promptly following the receipt of, and based upon, such update, the Special
Servicer shall redetermine and report to the Trustee, the Master Servicer, the
Directing Certificateholder, the related Companion Loan Holder related to a
Whole Loan (subject to Section 12.10(b)) and any Holder of a Non-Registered
Certificate (other than a Class V, Class R-I or Class R-II Certificate subject
to Section 12.10(b)), the then applicable Appraisal Reduction Amount, if any,
with respect to the subject Required Appraisal Loan.
The Directing Certificateholder and the related Companion Loan
Holder (if a Whole Loan is involved and to the extent so provided in the
applicable Intercreditor Agreement) 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 requesting party. Upon receipt of such Appraisal
the Special Servicer shall deliver a copy thereof to the Trustee, the Master
Servicer, the Directing Certificateholder and the related Companion Loan Holder
(if a Whole Loan is involved). Promptly following the receipt of, and based
upon, such Appraisal, the Special Servicer shall redetermine and report to the
Trustee, the Master Servicer, the Directing Certificateholder and the related
Companion Loan Holder (if a Whole Loan is involved), the then applicable
Appraisal Reduction Amount, if any, with respect to the subject Required
Appraisal Loan.
(c) The Master Servicer and the Special Servicer shall each deliver
to the other, to the Trustee (but only upon its request) and to the Directing
Certificateholder and the related Companion Loan Holder (if a Whole Loan is
involved), copies of all Appraisals, environmental reports and engineering
reports (or, in each case, updates thereof) obtained with respect to any
Mortgaged Property or REO Property. Upon the request of any Rating Agency or any
Holder of a Non-Registered Certificate (except a Class V, Class R-I or Class
R-II Certificate), pursuant to Section 8.12(b), the Trustee will inform the
Master Servicer or Special Servicer, as applicable, of such request and, if
necessary, the Master Servicer or Special Servicer, as applicable, will deliver
instructions, whereupon either such party, as applicable, shall deliver copies
of any of the items delivered pursuant to the preceding sentence to such
requesting Person.
(d) No more frequently than once per calendar month, the Special
Servicer may require the Master Servicer, and the Master Servicer shall be
obligated subject to the second following paragraph to reimburse the Special
Servicer for any Servicing Advances that were made by the Special Servicer
(notwithstanding the fact that it has no obligation to make such Servicing
Advances), but not previously reimbursed (whether pursuant to this Section
3.19(d) or otherwise) to the Special Servicer, and to pay the Special Servicer
interest thereon at the Reimbursement Rate from the date made to, but not
including, the date of reimbursement. Such reimbursement and any accompanying
payment of interest shall be made within ten days of the request therefor by
wire transfer of immediately available funds to an account designated by the
Special Servicer. Upon the Master Servicer's reimbursement to the Special
Servicer of any Servicing Advance and payment to the Special Servicer of
interest thereon, all in accordance with this Section 3.19(d), the Master
Servicer shall for all purposes of this Agreement be deemed to have made such
Servicing Advance at the same time as the Special Servicer originally made such
Advance, and accordingly, the Master Servicer shall be entitled to reimbursement
for such Advance, together with Advance Interest thereon, at the same time, in
the same manner and to the same extent as the Master Servicer would otherwise
have been entitled if it had actually made such Servicing Advance.
Notwithstanding anything to the contrary contained in this
Agreement, if the Special Servicer (i) is required under any other provision of
this Agreement to direct the Master Servicer to make a Servicing Advance or (ii)
is otherwise aware a reasonable period in advance that it is reasonably likely
that the Special Servicer will incur a cost or expense that will, when incurred,
constitute a Servicing Advance, the Special Servicer shall (in the case of
clause (i) of this sentence), and shall use reasonable efforts to (in the case
of clause (ii) of this sentence), 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 Mortgage Loan and REO Loan for which such
Master Servicing Fees are being paid in such Collection Period, calculated at
0.01% per annum, and (2) all Prepayment Interest Excesses received in respect of
the Mortgage Pool during the most recently ended Collection Period, plus (iii)
in the event that any Principal Prepayment was received on the last Business Day
of the second most recently ended Collection Period, but for any reason was not
included as part of the Master Servicer Remittance Amount for the preceding
Master Servicer Remittance Date (other than because of application of the
subject Principal Prepayment in accordance with Section 3.05(a) for another
purpose), the total of all interest and other income accrued or earned on the
amount of such Principal Prepayment while it is on deposit in the Certificate
Account or, in the case of a Mortgage Loan included in a Whole Loan, Section
3.05(f); provided, however, that if a Prepayment Interest Shortfall occurs as a
result of the Master Servicer's allowing the related Borrower to deviate from
the terms of the related loan documents regarding principal prepayments (other
than (v) on a Specially Serviced Loan, (w) a payment of insurance proceeds or
condemnation proceeds, (x) a payment subsequent to a default under the related
loan documents (provided the Master Servicer reasonably believes that acceptance
of such payment is consistent with the Servicing Standard and has obtained the
consent of the Special Servicer), (y) pursuant to applicable law or a court
order, or (z) at the request or with the consent of the Directing
Certificateholder), then, for purposes of calculating the Compensating Interest
Payment for the subject Collection Period, the amount in clause (ii) of this
paragraph 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, the rights of the
Certificateholders to offset the aggregate Prepayment Interest Shortfalls shall
not be cumulative.
(f) Except under the same circumstances that it would be permitted
to waive a prepayment lockout provision in the subject Loan pursuant to Section
3.20(a), neither the Master Servicer nor the Special Servicer shall consent to
any Mortgagor's prepaying its Loan, partially or in its entirety, if the
Mortgagor would be prohibited from doing so without such consent. In each case
subject to the Servicing Standard and applicable law and to the extent permitted
by the related loan documents, the Master Servicer and the Special Servicer
agree not to accept any Principal Prepayments with respect to any Loan on a date
other than the applicable due date therefor except that the Special Servicer
shall be permitted to accept Principal Prepayments with the consent of the
Directing Certificateholder.
(g) The Master Servicer shall not exercise any discretionary right
it has with respect to any Loan pursuant to the related Mortgage Note or
Mortgage to apply any amounts maintained as an escrow or reserve to the
principal balance of such Loan except in the case of a default thereunder.
(h) The Master Servicer shall send written notice to each Borrower
to the effect that, if applicable, the Master Servicer and/or the Trustee have
been appointed as the "designee" of the lender under any related Lock-Box
Agreement.
(i) In connection with each prepayment of principal received
hereunder, the Master Servicer shall calculate any applicable Prepayment Premium
under the terms of the related Mortgage Note. Promptly following its
determination thereof, the Master Servicer shall disclose to the Trustee its
calculation of any such Prepayment Premium.
(j) The Master Servicer shall, as to each Loan that is secured by
the interest of the related Mortgagor under a Ground Lease, promptly (and in any
event within 45 days) after the Closing Date notify the related ground lessor of
the transfer of such Loan to the Trust pursuant to this Agreement and inform
such ground lessor that any notices of default under the related Ground Lease
should thereafter be forwarded to the Master Servicer.
(k) Except as required under the loan documents, Mezzanine
Intercreditor Agreement or applicable law and subject to Section 3.21(f), the
Special Servicer shall not, without the consent of the Directing
Certificateholder, consent to the foreclosure of any Mezzanine Loan or to the
transfer of any Mezzanine Loan.
Section 3.20 Modifications, Waivers, Amendments and Consents.
(a) The Master Servicer (solely as to Performing Loans) 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 Loan it is required to service and administer hereunder without
the consent of the Trustee or any Certificateholder, subject, however, to
Section 3.02, Section 3.08 and Section 3.21 and each of the following
limitations, conditions and restrictions:
(i) other than as provided in Sections 2.03(b), 3.02, 3.08 and
3.20(f), the Master Servicer shall not agree to any modification, waiver
or amendment of any term of, or take any of the other acts referenced in
this Section 3.20(a) with respect to, any Loan, that would affect the
amount or timing of any related payment of principal, interest or other
amount payable under such Loan or affect the security for such Loan,
unless the Master Servicer has obtained the consent of the Special
Servicer (it being understood and agreed that (A) the Master Servicer
shall promptly provide the Special Servicer with notice of any Mortgagor's
request for such modification, waiver or amendment, the Master Servicer's
recommendations and analysis, and with all information reasonably
available to the Master Servicer that the Special Servicer may reasonably
request to withhold or grant any such consent, each of which shall be
provided reasonably promptly in accordance with the Servicing Standard,
(B) the Special Servicer shall decide whether to withhold or grant such
consent in accordance with the Servicing Standard and (C) if any such
request has not been expressly responded to within ten Business Days
(subject to any extensions of applicable time periods required if the
Special Servicer is required by this Agreement to seek the consent of
third parties) of the Special Servicer's receipt from the Master Servicer
of the Master Servicer's recommendations and analysis and all information
reasonably requested thereby and reasonably available to the Master
Servicer, as such time period may be extended if the Special Servicer is
required to seek the consent of the Directing Certificateholder, the
related Companion Loan Holder related to a Whole Loan, 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) and (v), 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 any Whole Loan, if
applicable) for up to six months (but not more than two such extensions by
the Master Servicer shall occur);
(iii) other than as provided in Sections 3.02 and 3.08, the Special
Servicer shall not agree to (or, in the case of a Performing Loan, consent
to the Master Servicer's agreeing to) any modification, waiver or
amendment of any term of, or take (or, in the case of a Performing Loan,
consent to the Master Servicer's taking) any of the other acts referenced
in this Section 3.20(a) with respect to, any Loan that would affect the
amount or timing of any related payment of principal, interest or other
amount payable thereunder or, in the reasonable, good faith judgment of
the Special Servicer, would add to, release, substitute for, or otherwise
alter a material amount of the security for such Loan, unless a material
default on such Loan has occurred or, in the reasonable, good faith
judgment of the Special Servicer, a default in respect of payment on such
Loan is reasonably foreseeable, and such modification, waiver, amendment
or other action is reasonably likely to produce a greater recovery to the
Certificateholders, or if a Whole Loan is affected, to the
Certificateholders and the related Companion Loan Holder (as a collective
whole) on a net present value basis than would liquidation;
(iv) the Special Servicer shall not extend (or, in the case of a
Performing Loan, consent to the Master Servicer's extending) the date on
which any Balloon Payment is scheduled to be due on any Loan to a date
beyond the earliest of (A) five years prior to the Rated Final
Distribution Date, and (B) if such Loan is secured by a Mortgage solely or
primarily on the related Mortgagor's leasehold interest in the related
Mortgaged Property, 20 years (or, to the extent consistent with the
Servicing Standard, giving due consideration to the remaining term of the
Ground Lease, ten years) prior to the end of the then current term of the
related Ground Lease (plus any unilateral options to extend);
(v) neither the Master Servicer nor the Special Servicer shall make
or permit any modification, waiver or amendment of any term of, or take
any of the other acts referenced in this Section 3.20(a) with respect to,
any Loan that would result in an Adverse REMIC Event with respect to REMIC
I or REMIC II;
(vi) subject to applicable law, the related loan documents and the
Servicing Standard, neither the Master Servicer nor the Special Servicer
shall permit any modification, waiver or amendment of any term of any Loan
unless all related fees and expenses are paid by the related Mortgagor;
(vii) the Special Servicer shall not permit (or, in the case of a
Performing Loan, consent to the Master Servicer's permitting) any
Mortgagor to add or substitute any real estate collateral for its Loan
unless the Special Servicer shall have first determined in its reasonable,
good faith judgment, based upon a Phase I Environmental Assessment (and
any additional environmental testing that the Special Servicer deems
necessary and prudent) conducted by an Independent Person who regularly
conducts Phase I Environmental Assessments, at the expense of the
Mortgagor, that such additional or substitute collateral is in compliance
with applicable environmental laws and regulations and that there are no
circumstances or conditions present with respect to such new collateral
relating to the use, management or disposal of any Hazardous Materials for
which investigation, testing, monitoring, containment, clean-up or
remediation would be required under any then applicable environmental laws
or regulations; and
(viii) the Special Servicer shall not permit the release, including
in connection with a substitution contemplated by clause (vii) of this
Section 3.20(a), any collateral securing an outstanding Loan, except as
provided in Section 3.09(d) or Section 3.26, or except where a 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 Loan in an amount at least equal to the
appraised value of the collateral to be released (or substitute collateral
with an appraised value at least equal to that of the collateral to be
released, is delivered), (B) the remaining Mortgaged Property (together
with any substitute collateral) is, in the Special Servicer's good faith
and reasonable judgment, adequate security for the remaining Loan and (C)
such release would not, in and of itself, result in an Adverse Rating
Event with respect to any Class of Rated Certificates (as confirmed in
writing to the Trustee by each Rating Agency);
provided that the limitations, conditions and restrictions set forth in clauses
(i) through (vii) of this Section 3.20(a)shall not apply to any act or event
(including, without limitation, a release, substitution or addition of
collateral) in respect of any Loan that either occurs automatically, or results
from the exercise of a unilateral option by the related Mortgagor within the
meaning of Treasury Regulations Section 1.1001-3(c)(2)(iii), in any event under
the terms of such Loan in effect on the Closing Date (or, in the case of a
Replacement Mortgage Loan, on the related date of substitution); and provided,
further, notwithstanding clauses (i) through (vii) of this Section 3.20(a),
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, notwithstanding clause (vii) of this Section 3.20(a),
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.
(b) Neither the Master Servicer nor the Special Servicer shall have
any liability to the Trust, the Certificateholders and, in the case of a Whole
Loan, the related Companion Loan 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 a Whole Loan is affected, to the
Certificateholders and the related Companion Loan Holder (as a collective whole)
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 related Companion Loan
Holder (if a Whole Loan is involved). The Special Servicer shall include with
any such Officer's Certificate the supporting documentation forming the basis
for its conclusion.
(c) Any payment of interest that is deferred pursuant to Section
3.20(a) shall not, for purposes hereof, including, without limitation,
calculating monthly distributions to Certificateholders, be added to the unpaid
principal balance or Stated Principal Balance of the related Loan,
notwithstanding that the terms of such Loan so permit or that such interest may
actually be capitalized.
(d) The Master Servicer (as to Performing Loans) 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 Loan and is
permitted by the terms of this Agreement, require that such Mortgagor pay to it,
as additional servicing compensation, a reasonable fee relating to such consent,
modification, waiver or indulgence (not to exceed 1.0% of the unpaid principal
balance of the related Loan) for the additional services performed in connection
with such request, together with any related costs and expenses incurred by it;
provided that the charging of such fees would not otherwise constitute a
"significant modification" of the Loan pursuant to Treasury Regulations Section
1.860G-2(b). All such fees collected by the Master Servicer and/or the Special
Servicer shall be allocable between such parties, as Additional Master Servicing
Compensation and Additional Special Servicing Compensation, respectively, as
provided in Section 3.11.
(e) All modifications, waivers, amendments and other actions entered
into or taken in respect of the Loans pursuant to the preceding subsections of
this Section 3.20 shall be in writing. Each of the Master Servicer and the
Special Servicer shall notify the other such party, the Trustee, the Directing
Certificateholder and the related Companion Loan Holder (if a Whole Loan is
involved), in writing, of any modification, waiver, amendment or other action
entered into or taken in respect of any Loan pursuant to this Section 3.20 and
the date thereof, and shall deliver to the Trustee or the related Custodian for
deposit into the related Mortgage File (with a copy to the other such party), an
original counterpart of the agreement relating to such modification, waiver,
amendment or other action, promptly (and in any event within ten Business Days)
following the execution thereof. In addition, following the execution of any
modification, waiver or amendment agreed to by the Special Servicer pursuant to
Section 3.20(a), the Special Servicer shall deliver to the Master Servicer and
the Trustee an Officer's Certificate setting forth in reasonable detail the
basis of the determination made by it pursuant to clause (ii) of Section
3.20(a).
(f) With respect to any ARD Loan after its Anticipated Repayment
Date, the Master Servicer shall be permitted to waive all or any accrued Excess
Interest if, prior to the related maturity date, the related Mortgagor has
requested the right to prepay the Loan in full together with all payments
required by the Loan in connection with such prepayment except for all or a
portion of accrued Excess Interest; provided, that the Master Servicer's
determination to waive the right to such accrued Excess Interest is reasonably
likely to produce a greater payment to Certificateholders on a net present value
basis than a refusal to waive the right to such Excess Interest. Any such waiver
shall not be effective until such payment is tendered. The Master Servicer shall
have no liability to the Trust, the Certificateholders or any other person so
long as such determination is based on such criteria. Notwithstanding anything
contained in this Agreement to the foregoing, the Master Servicer shall be
required to seek the consent of the Directing Certificateholder and provide to
the Directing Certificateholder any information that the Directing
Certificateholder may reasonably request in order to grant or deny its consent,
provided that such information is in the possession of the Master Servicer,
prior to waiving any Excess Interest. The Directing Certificateholder's consent
to a waiver shall be deemed granted if the Directing Certificateholder fails to
respond to such request within ten Business Days of its receipt of such request.
Except as permitted in Section 3.20(a), the Special Servicer shall have no right
to waive the payment of Excess Interest.
(g) The Master Servicer shall not be required to seek the consent of
the Special Servicer or any Certificateholder or obtain any confirmation of the
Certificate ratings from the Rating Agencies (unless otherwise set forth in the
related Intercreditor Agreement with respect to a Whole Loan) to approve the
following modifications, waivers or amendments of the Loans: (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, including in connection with a pending or threatened 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) 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; and (iv) other routine approvals, including the granting of
subordination, non-disturbance and attornment agreements and leasing consents,
typically performed by a Master Servicer on a routine basis.
(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 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
related Companion Loan Holder (if a Whole Loan is involved), audited operating
statements on a quarterly basis with respect to the related Mortgaged Property,
provided that the Special Servicer or the Master Servicer, as the case may be,
may, in its sole discretion, waive the requirement that such statements be
audited.
(i) If the Master Servicer or the Special Servicer collects a
modification fee or a modification application fee in connection with a
modification or proposed modification of a Loan, then the Master Servicer or the
Special Servicer, as applicable, will apply that fee to cover the costs and
expenses associated with that modification or proposed modification that are not
otherwise paid by the related Mortgagor and that would otherwise be payable or
reimbursable out of the Trust Fund, including any Rating Agency fees and
expenses. Any remaining portion of such modification fee (such remaining
portion, a "Net Modification Fee") or of such modification application fee (such
remaining portion, a "Net Modification Application Fee") will be applied as
additional compensation to the Master Servicer or the Special Servicer in
accordance with Section 3.11.
Section 3.21 Transfer of Servicing Between Master Servicer and
Special Servicer; Record Keeping; Asset Status Report.
(a) Upon determining that a Servicing Transfer Event has occurred
with respect to any Loan, the Master Servicer shall immediately give notice
thereof to the Directing Certificateholder and the related Companion Loan Holder
(if a Whole Loan is involved), and deliver the related Servicing File to the
Special Servicer and shall use its best efforts to provide the Special Servicer
with all information, documents (or copies thereof) and records (including
records stored electronically on computer tapes, magnetic discs and the like)
relating to the Loan and reasonably requested by the Special Servicer to enable
it to assume its functions hereunder with respect thereto without acting through
a Sub-Servicer. Notwithstanding anything in Section 2.01(b) or any other
provision of this Agreement to the contrary, the copying and delivery of such
documents, instruments, items, records and information shall not be at the
expense of the Special Servicer. At its option, although its Sub-Servicing
Agreement is 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 Loan, the Special Servicer shall promptly give notice thereof to the
Master Servicer and to the Directing Certificateholder and the related Companion
Loan Holder (if a Whole Loan is involved), and return the related Servicing File
to the Master Servicer within five Business Days and upon giving such notice and
returning such Servicing File, to the Master Servicer, the Special Servicer's
obligation to service such Loan, and the Special Servicer's right to receive the
Special Servicing Fee with respect to such Loan, shall terminate, and the
obligations of the Master Servicer to service and administer such Loan shall
resume.
Notwithstanding other provisions in this Agreement to the contrary,
the Master Servicer shall remain responsible for the accounting, data
collection, reporting and other basic Master Servicer administrative functions
with respect to the Specially Serviced Loans, provided that the Master Servicer
shall establish reasonable procedures as to the application of Special Servicer
receipts and tendered payments, and the Special Servicer shall have the
exclusive responsibility for and authority over all contacts (including
collection, which information shall be provided by the Master Servicer) with and
notices to Mortgagors and similar matters relating to each Specially Serviced
Loan and the related Mortgaged Property.
Also notwithstanding anything herein to the contrary, in connection
with the transfer to the Special Servicer of the servicing, subject to Section
2.03, of a Cross-Collateralized Mortgage Loan as a result of a Servicing
Transfer Event or the reassumption of servicing responsibilities by the Master
Servicer with respect to any such Loan upon its becoming a Corrected Loan, the
Master Servicer and the Special Servicer shall each transfer to the other, as
and when applicable, the servicing of all other Cross-Collateralized Mortgage
Loans constituting part of the same Cross-Collateralized Set; provided that no
Cross-Collateralized Mortgage Loan may become a Corrected Loan at any time that
a continuing Servicing Transfer Event exists with respect to another
Cross-Collateralized Mortgage Loan in the same Cross-Collateralized 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 Loan is a Specially
Serviced Loan, for inclusion in the related Mortgage File (with a copy of each
such original to the Master Servicer), and provide to the Master Servicer copies
of any additional related Loan information, including correspondence with the
related Mortgagor generated while such Loan is a Specially Serviced Loan.
(c) Notwithstanding anything in this Agreement to the contrary, in
the event that the Master Servicer and the Special Servicer are the same Person,
all notices, certificates, information, consents and documents required to be
given or delivered by the Master Servicer to the Special Servicer or vice versa
shall be deemed to be given or delivered, as the case may be, without the
necessity of any action on such Person's part.
(d) No later than 45 days after the date the servicing of a Loan is
transferred from the Master Servicer to the Special Servicer pursuant to the
terms of this Agreement, the Special Servicer shall deliver to each Rating
Agency, the Master Servicer, the Trustee, the related Companion Loan Holder (if
a Whole Loan is involved), and the Directing Certificateholder a report (the
"Asset Status Report") with respect to such Loan and the related Mortgaged
Property. Such Asset Status Report shall set forth the following information to
the extent reasonably determinable:
(i) 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 Loan and whether outside legal counsel has been
retained;
(iii) the most current rent roll and income or operating statement
available for the related Mortgaged Property;
(iv) the Special Servicer's recommendations on how such Specially
Serviced Loan might be returned to performing status and returned to the
Master Servicer for regular servicing or otherwise realized upon;
(v) the Appraised Value of the Mortgaged Property together with the
assumptions used in the calculation thereof (which the Special Servicer
may satisfy by providing a copy of the last obtained Appraisal); and
(vi) such other information as the Special Servicer deems relevant
in light of the Servicing Standard.
If within ten Business Days of receiving an Asset Status Report, the
Directing Certificateholder, does not disapprove such Asset Status Report in
writing, the Special Servicer shall implement the recommended action as outlined
in such Asset Status Report; provided, however, that the Special Servicer may
not take any action that is contrary to applicable law, the Servicing Standard
or the terms of the applicable 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 response. If the
Directing Certificateholder disapproves such Asset Status Report, the Special
Servicer will revise such Asset Status Report and deliver to the Directing
Certificateholder, the Rating Agencies, the Trustee and the Master Servicer a
new Asset Status Report as soon as practicable, but no later than 30 days after
such disapproval. The Special Servicer shall revise such Asset Status Report as
described above in this Section 3.21(d) until the earlier of (x) the delivery by
the Directing Certificateholder of an affirmative approval in writing of such
revised Asset Status Report, (y) the failure of Directing Certificateholder to
disapprove such revised Asset Status Report in writing within ten Business Days
of its receipt thereof; or (z) the passage of 90 days from the date of
preparation of the initial version of the Asset Status Report. Following the
earliest of such events, 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 related Companion Loan
Holder (if a Whole Loan is involved), with not less than ten Business Days'
prior notice (except as provided in Section 3.08(a)) of any Special Action (as
described below) that the Special Servicer or the Master Servicer, as
applicable, proposes to take and, in the case of the Special Action described in
clause (vi) in this Section 3.21(e), 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 shall be entitled to advise the
Special Servicer with respect to any Special Action, and notwithstanding
anything to the contrary contained herein, the Special Servicer shall not take
any Special Action or consent to the taking of any Special Action if the
Directing Certificateholder has objected thereto by the close of business on the
tenth Business Day following its receipt of notice thereof, or if a shorter
period was necessitated in accordance with the preceding sentence, by the close
of business on the date on which such shorter period expires (it being
understood that the failure of the Directing Certificateholder to respond in the
time frame set forth in the Approval Provisions shall be deemed to constitute
such party's approval of such action); provided, however, that (x) the ability
of the Directing Certificateholder to so advise or object shall in all events be
subject to Section 3.21(f) and shall not violate the provisions of the 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, (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 Loan, the Master Servicer or Special
Servicer shall comply with the Approval Provisions, as applicable. For purposes
hereof, "Special Action" means each of the following actions:
(i) any proposed or actual foreclosure upon or comparable conversion
(which may include acquisitions of an REO Property) of the ownership of
properties securing such of the Specially Serviced Loans as come into and
continue in default;
(ii) any modification or waiver of a Loan;
(iii) any proposed or actual sale of a Defaulted Loan or REO
Property (other than in connection with the termination of the Trust Fund
or pursuant to Section 3.18);
(iv) any determination to bring an REO Property into compliance with
applicable environmental laws or to otherwise address Hazardous Materials
located at an REO Property;
(v) any acceptance of substitute or additional collateral for a Loan
unless the lender is required to accept such collateral by the underlying
loan documents and any release of the real estate collateral securing the
Loan (except as permitted by clause (ii) of Section 3.20(g));
(vi) any waiver of a "due-on-sale" clause (except as set forth in
Section 3.08(a)) or "due-on-encumbrance" clause;
(vii) any acceptance or approval of acceptance or consent to
acceptance of an assumption agreement releasing a borrower from liability
under a 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 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 (i) to the
Certificateholders (other than the Holders of the Controlling Class); (ii) to
the related Companion Loan Holder (if a Whole Loan is involved); or (iii) to any
Holder of the Controlling Class for any action taken, or for refraining from the
taking of any action, pursuant to this Agreement, or for errors in judgment;
provided, however, that the Directing Certificateholder will not be protected
against any liability to any Holder of the Controlling Class would otherwise be
imposed by reason of willful misfeasance, bad faith or negligence in the
performance of duties or by reason of reckless disregard of obligations or
duties. By its acceptance of a Certificate, each Certificateholder confirms its
understanding that the Directing Certificateholder may take actions that favor
the interests of one or more Classes of the Certificates over other Classes of
the Certificates, and that the Directing Certificateholder may have special
relationships and interests that conflict with those of Holders of some Classes
of the Certificates, that the Directing Certificateholder may act solely in the
interests of the Holders of the Controlling Class, that the Directing
Certificateholder has no duties to the Holders of any Class of Certificates
other than the Controlling Class, that none of the Directing Certificateholder
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, that none of the
Directing Certificateholder, shall have any liability whatsoever for having so
acted, and no Certificateholder may take any action whatsoever against the
Directing Certificateholder, or any director, officer, employee, agent or
principal thereof for having so acted.
(g) [RESERVED].
(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 such summary
and such information as is in its possession or control and is reasonably
requested by the Directing Certificateholder as may be necessary in the
reasonable judgment of the Directing Certificateholder in order to make a
determination with respect to such Special Action.
The Master Servicer or Special Servicer shall provide to the
Directing Certificateholder 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 Directing Certificateholder by hard copy, electronic means or by other means
agreed to by the Directing Certificateholder 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 Directing Certificateholder and shall not be an expense of the
Trust Fund.
Section 3.22 Sub-Servicing Agreements.
(a) The Master Servicer and the Special Servicer (in the case of the
Special Servicer, with the consent of the Directing Certificateholder) may each
enter into Sub-Servicing Agreements to provide for the performance by third
parties of any or all of its obligations hereunder, provided that, in each case,
the Sub-Servicing Agreement: (i) insofar as it affects the Trust or, if a Whole
Loan is involved, the related Companion Loan 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
Loan serviced thereunder at the time such Loan becomes a Specially Serviced Loan
unless such Loan is then sub-serviced by Midland Loan Services, Inc. or its
permitted successors and assigns pursuant to such Sub-Servicing Agreement (but
only until such time as such Loan becomes a Corrected Loan); (iv) in the case of
a Sub-Servicing Agreement entered into by the Special Servicer, relates only to
Specially Serviced Loans or REO Properties and expressly or effectively provides
that such agreement shall terminate with respect to any such Loan that becomes a
Corrected Loan; (v) in the case of a Sub-Servicing Agreement entered into by the
Master Servicer, provides that the related Sub-Servicer shall comply with all
reasonable requests for additional information made by the Master Servicer
(provided, however, that the related Sub-Servicer shall not be required to
furnish the same information to the Master Servicer more than once) and,
further, provides that the failure of the related Sub-Servicer to furnish the
Master Servicer on a timely basis with any required reports, statements or other
information, including without limitation, the reports referred to in Section
3.12(a), either (A) shall permit the Master Servicer to make necessary inquiries
of the related borrower directly or (B) shall (subject to a cure period not to
exceed 60 days) constitute an event of default thereunder for which the Master
Servicer may terminate such Sub-Servicer without payment of any termination fee
(it being understood that notwithstanding anything to the contrary in this
clause (v), the obligations of a Sub-Servicer in respect of 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
Loan without the approval of the Master Servicer, in the case of Performing
Loans or of the Special Servicer, in the case of Specially Serviced Loans or
authorizes the Sub-Servicer to foreclose any Loan without the approval of the
Special Servicer; (vii) imposes no liability whatsoever on the Trustee or the
Certificateholders or the related Companion Loan Holder (in the case of a Whole
Loan) 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, the related Companion Loan Holder (in the case of a Whole Loan) and the
Depositor in writing promptly of the appointment by it of any Sub-Servicer, and
shall deliver to the Trustee copies of all Sub-Servicing Agreements, and any
amendments thereto and modifications thereof, entered into by it promptly upon
its execution and delivery of such documents.
(b) Each Sub-Servicer actually performing servicing functions (i)
shall be authorized to transact business in the state or states in which the
Mortgaged Properties for the Loans it is to service are situated, if and to the
extent required by applicable law, and (ii) to the extent sub-servicing
multifamily loans, shall be an approved conventional seller/servicer of
multifamily mortgage loans for Xxxxxxx Mac or Xxxxxx Mae or a HUD-Approved
Servicer.
(c) The Master Servicer and the Special Servicer, for the benefit of
the Trustee and the Certificateholders and the related Companion Loan Holder (in
the case of a Whole Loan), shall (at no expense to the Trustee, the
Certificateholders or the Trust or the related Companion Loan Holder (in the
case of a Whole Loan)) each monitor the performance and enforce the obligations
of its Sub-Servicers under the related Sub-Servicing Agreements. Such
enforcement, including, without limitation, the legal prosecution of claims,
termination of Sub-Servicing Agreements in accordance with their respective
terms and the terms of this Agreement, and the pursuit of other appropriate
remedies, shall be in such form and carried out to such an extent and at such
time as the Master Servicer or the Special Servicer, as the case may be, in its
reasonable business judgment, would require were it the owner of the Loans.
Promptly upon becoming aware of a default under any Sub-Servicing Agreement to
which it is a party, the Master Servicer or the Special Servicer, as the case
may be, shall notify each of the other parties hereto, the Trustee and the
related Companion Loan Holder (if a Whole Loan is involved), and then the
Trustee shall provide a copy of such notice to the Directing Certificateholder,
and, in accordance with Section 8.12(b), shall, upon request, provide a copy of
such notice to each Holder of a Non-Registered Certificate (except a Class V,
Class R-I or Class R-II Certificate) of any such default.
(d) With respect to the Sub-Servicing Agreements in effect as of the
Closing Date that are listed on Schedule II, the initial Master Servicer hereby
agrees that it shall not, in its capacity as Master Servicer, terminate any
Sub-Servicer thereunder without cause. In the event of the resignation, removal
or other termination of the initial Master Servicer (or any successor Master
Servicer) hereunder for any reason, the successor to the initial Master Servicer
(or to such successor Master Servicer) shall elect, with respect to any
Sub-Servicing Agreement existing at the time of such termination (i) to assume
the rights and obligations of the predecessor Master Servicer under such
Sub-Servicing Agreement and continue the sub-servicing arrangements thereunder
on the same terms (including without limitation the obligation to pay the same
sub-servicing 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 Loans then being serviced thereunder and an accounting of
amounts collected and held on behalf of it thereunder, and otherwise use its
best efforts to effect the orderly and efficient transfer of the Sub-Servicing
Agreement to the assuming party.
(f) Notwithstanding any Sub-Servicing Agreement, the Master Servicer
and the Special Servicer shall each remain obligated and liable to the Trustee
and the Certificateholders for the performance of its obligations and duties
under this Agreement in accordance with the provisions hereof to the same extent
and under the same terms and conditions as if it alone were servicing and
administering the Loans for which it is responsible.
(g) Notwithstanding anything to the contrary set forth herein, any
account established and maintained by a Sub-Servicer pursuant to a Sub-Servicing
Agreement with the Master Servicer shall for all purposes under this Agreement
be deemed to be an account established and maintained by the Master Servicer.
(h) Each Sub-Servicer pursuant to its related Sub-Servicing
Agreement shall retain the original of any letter of credit that has been issued
in connection with any Loan that it sub-services pursuant to such agreement on
behalf of the Master Servicer for the benefit of the Certificateholders provided
that it shall provide a copy of such letter of credit to the Master Servicer.
(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 and the related Companion Loan Holder (in
the case of a Whole Loan).
Section 3.23 Designation of the Special Servicer by the Majority
Certificateholder of the Controlling Class.
The Majority Certificateholder of the Controlling Class may at any
time and from time to time terminate (with or without cause) and replace any
existing Special Servicer or any Special Servicer that has resigned or otherwise
ceased to serve as Special Servicer. Such Majority Certificateholder shall so
designate a Person to so serve by the delivery to the Trustee of a written
notice stating such designation. The Trustee shall, promptly after receiving any
such notice, so notify the Rating Agencies. The designated Person shall become
the Special Servicer as of the date the Trustee shall have received: (i) written
confirmation from each Rating Agency stating that if the designated Person were
to serve as Special Servicer hereunder, none of the then current ratings
assigned by such Rating Agency to the respective Classes of the Certificates
would be downgraded, qualified (if applicable) or withdrawn as a result thereof;
(ii) a written acceptance of all obligations of the Special Servicer under this
Agreement, executed by the designated Person; and (iii) an Opinion of Counsel
(at the expense of the Person designated to become the Special Servicer) to the
effect that the designation of such Person to serve as Special Servicer is in
compliance with this Section 3.23, that upon the execution and delivery of the
written acceptance referred to in the immediately preceding clause (ii), the
designated Person shall be bound by the terms of this Agreement and that this
Agreement shall be enforceable against the designated Person in accordance with
its terms. The existing Special Servicer shall be deemed to have resigned
simultaneously with such designated Person's becoming the Special Servicer
hereunder; provided, however, that (i) the terminated or resigned, as
applicable, Special Servicer shall continue to be entitled to receive all
amounts accrued or owing to it under this Agreement on or prior to the effective
date of such resignation, whether in respect of Servicing Advances or otherwise,
(ii) it shall be entitled to certain Workout Fees thereafter received to the
extent permitted by Section 3.11(c), and (iii) it and its directors, officers,
employees and agents shall continue to be entitled to the benefits of Section
6.03, notwithstanding any such termination or resignation. Such terminated
Special Servicer shall cooperate with the Trustee and the replacement Special
Servicer in effecting the termination of its responsibilities and rights
hereunder, including, without limitation, the transfer within two Business Days
to the replacement Special Servicer for administration by it of all cash amounts
that shall at the time be or should have been credited by the terminated Special
Servicer to the REO Account or delivered to the Master Servicer or that are
thereafter received by the terminated Special Servicer with respect to Specially
Serviced Loans and REO Properties and the execution and delivery of such
documents acknowledging its termination as Special Servicer as may be required
by any Rating Agency. 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.
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 Loans it is sub-servicing), a Borrower (with respect to the
related Loan), any Certificateholder, the related Companion Loan Holder (in the
case of a Whole Loan) and the Rating Agencies, any information that it obtains
in its capacity as Master Servicer or Special Servicer with respect to the Loans
or any related Mortgagor including, without limitation, credit information with
respect to any such Mortgagor (collectively, "Confidential Information"), except
(i) any officers, directors and employees of the Master Servicer or Special
Servicer (or any officers, directors and employees of any Affiliates of the
Master Servicer or Special Servicer); (ii) auditors of the Master Servicer or
the Special Servicer and any agents, financial or tax advisors, attorneys,
accountants and professional consultants retained by the Master Servicer or the
Special Servicer in connection with the transactions contemplated by this
Agreement that have been informed of the confidential nature of the information
provided to them; (iii) each Mortgage Loan Seller with respect to information
relating to the Loans transferred into the Trust by such Mortgage Loan Seller;
(iv) a potential purchaser of servicing rights hereunder that has agreed to keep
such information confidential; (v) to the extent the Master Servicer or Special
Servicer deems such disclosure to be reasonably necessary in carrying out its
duties pursuant to this Agreement or any Sub-Servicing Agreement; (vi) to the
extent such information is publicly available or otherwise available from
sources unrelated to this transaction; (vii) to the extent such disclosure is
required by law or court order or is demanded pursuant to a subpoena; (viii) to
the extent such information is required to be delivered to third parties
(including, without limitation, property inspectors, tax service companies,
insurance carriers, and data systems vendors) in connection with the performance
of the Master Servicer's or the Special Servicer's obligations hereunder; or
(ix) to the extent the Depositor consents in writing to such disclosure. For
purposes of this paragraph, the terms "Master Servicer" and "Special Servicer"
shall mean the divisions or departments of such corporate entities involved in
providing services hereunder and their respective officers, directors and
employees. Notwithstanding anything in this Section 3.24 to the contrary, the
Master Servicer, and any Sub-Servicer with the prior written permission of the
Master Servicer, may disseminate pool-wide and general statistical information
relating to the 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
Permitting Defeasance, Franchise Mortgage Loans and Certain Mortgage Loans
Permitting Additional Debt.
(a) With respect to each Mortgage Loan as to which the Master
Servicer shall have the discretion pursuant to the terms thereof to require the
related Mortgagor to post defeasance collateral consisting of U.S. government
securities, within the meaning of Treasury Regulations Section
1.860G-2(a)(8)(i), in an amount sufficient to make all scheduled payments under
the Mortgage Note when due in lieu of making a permitted prepayment, the Master
Servicer shall so require defeasance, provided the Master Servicer has received
an Opinion of Counsel that such defeasance complies with Treasury Regulations
Section 1.860G-2(a)(8). The Master Servicer may accept as defeasance collateral
any "government security," within the meaning of Treasury Regulations Section
1.860G-2(a)(8)(i), notwithstanding any more restrictive requirements in the
Mortgage.
(b) The Master Servicer shall require, as a condition to the
exercise by the Mortgagor of any defeasance rights, that the Mortgagor pay any
costs and expenses associated with such exercise.
(c) To the extent that the terms of a Mortgage permit defeasance,
the Master Servicer shall require the related Mortgagor to deliver a
certification from the Mortgagor's independent certified public accountants as
to the sufficiency of the related U.S. government securities, and provide a copy
of such certification to each Rating Agency and the Directing Certificateholder.
(d) To the extent that the terms of a Mortgage permit defeasance,
the Master Servicer shall not approve the form and substance of any required
legal documents in connection with such defeasance unless (i) to the extent that
the outstanding principal balance of a Mortgage Loan is $20,000,000 or more, or
constitutes 5% or more of the then current principal balance of the Mortgage
Pool or such Mortgage Loan comprises at the time one of the ten largest Mortgage
Loans (by outstanding principal balance) in the Mortgage Pool, Xxxxx'x and S&P
each shall have confirmed to it in writing that such defeasance will not result
in the withdrawal, downgrade or qualification (if applicable) of the rating of
any Class of Certificates, (ii) it shall have obtained an Opinion of Counsel
that the defeasance complies with applicable REMIC Provisions; and, (iii) it
shall have obtained an accountant's certification that the defeasance collateral
is sufficient to make payments under the related Mortgage Loan for the remainder
of its term. In the case of the defeasance of any Mortgage Loan that does not
require a Rating Agency confirmation pursuant to the immediately preceding
clause (i), the Master Servicer must provide to S&P after completion of the
defeasance a certification substantially in the form of Exhibit J hereto.
(e) With respect to each Mortgage Loan that provides for defeasance,
to the extent permitted by the terms of such Mortgage Loan, or if so requested
by the Rating Agencies, the Master Servicer shall use its best efforts to have
the related Mortgagor (i) designate a Single-Purpose-Entity (if the borrower no
longer complies) to assume the Mortgage Loan and own the collateral and (ii)
provide an opinion from counsel that the Trustee has a perfected security
interest in the new collateral.
(f) To the extent that (i) the outstanding principal balance of a
Mortgage Loan is $20,000,000 or more or constitutes 2% or more of the then
current principal balance of the Mortgage Pool, and (ii) the terms of the
related loan documents require the consent of the lender in order for the
related Mortgagor to change the manager of the related Mortgaged Property, the
Master Servicer shall not so consent to such a change in management unless it
has received (a) the prior consent of the Special Servicer, which will be deemed
given if such party has not responded within ten Business Days (as such period
may be extended herein if the consent of the Directing Certificateholder or the
related Companion Loan Holder (if a 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,
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 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 Loan in the Mortgage Pool
during the 12-month period preceding the receipt of such Default Charges,
which Advance Interest was paid from a source other than Default Charges
received on the Mortgage Pool;
third, to pay the Special Servicer for any Servicing Advances made
for the cost of an inspection made on a Specially Serviced Loan;
fourth, to reimburse the Trust for any other Additional Trust Fund
Expenses incurred with respect to any Mortgage Loan or REO Loan in the
Mortgage Pool during the 12-month period prior to the receipt of such
Default Charges, which expense was previously paid from a source other
than Default Charges received on the Mortgage Pool;
fifth, to pay the Master Servicer for Servicing Advances made for
the cost of an inspection made on a Loan other than a Specially Serviced
Loan; and
sixth, to pay any remaining portion of such Default Charges as
Additional Master Servicing Compensation to the Master Servicer, if such
Default Charges were collected with respect to a Performing Loan, and
otherwise to pay any remaining portion of such Default Charges as
Additional Special Servicing Compensation to the Special Servicer.
(b) Default Charges applied to reimburse the Trust pursuant to
either clause second or clause fourth of Section 3.27(a) is intended to be
available for distribution on the Certificates pursuant to Section 4.01(b),
subject to application pursuant to Section 3.05(a), Section 3.05(b), Section
3.05(c) or Section 3.05(f) for any items payable out of general collections on
the Mortgage Pool. Default Charges applied to reimburse the Trust pursuant to
either clause second or clause fourth of Section 3.27(a) shall be deemed to
offset payments of Advance Interest or other Additional Trust Fund Expenses
(depending on which clause is applicable) in the chronological order in which
they were made or incurred (whereupon such Advance Interest or other Additional
Trust Fund Expenses (depending on which clause is applicable) shall thereafter
be deemed to have been paid out of Default Charges).
(c) Any and all Default Charges that are actually collected with
respect to the Companion Loan related to a Whole Loan or any successor REO Loan
with respect thereto during any Collection Period (as allocable thereto pursuant
to the related loan agreement), shall be applied for the following purposes and
in the following order, in each case to the extent of the remaining portion of
such Default Charges and net of any portion of such Default Charges, if any,
that are required to be paid to the related Companion Loan 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 Loan or REO Loan in such
Whole Loan or the related REO Mortgaged Property and reimbursed in the related
Collection Period (to be applied with respect to any particular party in such
manner that the interest that accrued first and has been outstanding the longest
shall be paid first); and
second, to pay any remaining portion of such Default Charges as
Additional Master Servicing Compensation to the Master Servicer, to the extent
received, if they were accrued with respect to such Companion Loan during a
period that it was a Performing Loan, or as Additional Special Servicing
Compensation to the Special Servicer, to the extent received, if they were
accrued with respect to such Companion Loan during a period that it was a
Specially Serviced Loan or an REO Loan, in each case pursuant to Section 3.11.
Section 3.28 Matters Regarding the Whole Loans.
(a) The related Companion Loan Holder shall be entitled to receive a
copy of any 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. The related Companion Loan Holder shall also be entitled
to receive a copy of any document, certificate, instrument, notice or
correspondence required to be delivered (upon request or otherwise) by the
Trustee or Master Servicer with respect to the related Whole Loan or any related
REO Property to any other party hereto. In addition, the related Companion Loan
Holder, or a servicer acting on its behalf, shall be entitled to request
information from the Master Servicer with respect to the related Whole Loan to
permit customary reporting with respect to a securitization relating to the
related Companion Loan; provided, however, that the information provider shall
not be required to deliver information relating to Loans other than the related
Whole Loan or information of a scope or nature that is materially different from
that which is required to be delivered by the Master Servicer under this
Agreement. The Master Servicer shall be permitted to require payment of a sum
sufficient to cover the reasonable costs and expenses of providing such
information.
(b) If, pursuant to Section 2.03, Section 3.18 and Section 9.01, the
Mortgage Loan included in a Whole Loan is purchased or repurchased from the
Trust Fund, the purchaser thereof shall be bound by the terms of the related
Intercreditor Agreement and shall assume the rights and obligations of the
holder of the related Note under the related Intercreditor Agreement. All
portions of the related Mortgage File and other documents pertaining to such
Mortgage Loan shall be endorsed or assigned to the extent necessary or
appropriate to the purchaser of such Mortgage Loan in its capacity as the holder
of the related Note (as a result of such purchase or repurchase), under the
related Intercreditor Agreement in the manner contemplated under such agreement,
which such purchaser shall be deemed to acknowledge and thereafter such Mortgage
File shall be held by such purchaser or a custodian appointed thereby for the
benefit of each Note holder (as their interests appear under the related
Intercreditor Agreement). If the related Servicing File is not already in the
possession of such purchaser or custodian (as the case may be), it shall be
delivered to the master servicer or special servicer, as the case may be, under
the separate servicing agreement for the related Whole Loan.
(c) Within five Business Days of receipt of written notice that a
new Companion Loan Holder exists, the Trustee shall deliver notice to the Master
Servicer and the Special Servicer, of such related Companion Loan Holder's
identity.
Section 3.29 Certain Matters Relating to the Chicago Loop Portfolio
Loan.
(a) The Chicago Loop Portfolio Loan permits the borrower, subject to
certain conditions, to request a future advance (the "Chicago Loop Portfolio
Future Advance") that, when funded, will be pari passu with the Chicago Loop
Portfolio Loan. The Chicago Loop Portfolio Future Advance obligation is
represented by a pari passu note referred to as the Chicago Loop Portfolio Note
B made by the borrower in favor of Bear Xxxxxxx Commercial Mortgage, Inc.
whereby the borrower may request, and Bear Xxxxxxx Commercial Mortgage, Inc.
will be obligated, to make the Chicago Loop Portfolio Future Advance of
principal in an aggregate amount not to exceed $9,500,000, subject to certain
conditions. As of the Cut-off Date, no advance of principal has been funded
under the Chicago Loop Portfolio Note B. Only the Chicago Loop Portfolio Loan is
included in the Trust Fund.
(b) The Chicago Loop Portfolio Loan and the Chicago Loop Portfolio
Note B will be serviced and administered as a "Whole Loan" under the provisions
of this Agreement. if and when the related future advance occurs. Prior to such
future advance, the Chicago Loop Portfolio Loan shall be serviced and
administered as a "Mortgage Loan" under the provisions of this Agreement.
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 and in
the case of distributions of principal or reimbursement of Realized Losses
and Additional Trust Fund Expenses to:
(A) the Class A-1 Certificates, first to the REMIC I Regular
Interest LA-1-1, second to the REMIC I Regular Interest LA-1-2 and
then to the REMIC I Regular Interest LA-1-3, in each case, until
reduced to zero;
(B) the Class A-2 Certificates, first to the REMIC I Regular
Interest LA-2-1, second to the REMIC I Regular Interest LA-2-2,
third to the REMIC I Regular Interest LA-2-3, fourth to the REMIC I
Regular Interest LA-2-4, fifth to the REMIC I Regular Interest
LA-2-5, sixth to the REMIC I Regular Interest LA-2-6 and then to the
REMIC I Regular Interest LA-2-7, in each case, until reduced to
zero;
(C) the Class A-3 Certificates, first to the REMIC I Regular
Interest LA-3-1, second to the REMIC I Regular Interest LA-3-2,
third to the REMIC I Regular Interest LA-3-3, fourth to the REMIC I
Regular Interest LA-3-4, fifth to the REMIC I Regular Interest
LA-3-5 and then to the REMIC I Regular Interest LA-3-6, in each
case, until reduced to zero;
(D) the Class A-SB Certificates, first to the REMIC I Regular
Interest LA-SB-1, second to the REMIC I Regular Interest LA-SB-2,
third to the REMIC I Regular Interest LA-SB-3, fourth to the REMIC I
Regular Interest LA-SB-4 and then to the REMIC I Regular Interest
LA-SB-5, in each case, until reduced to zero;
(E) the Class A-4 Certificates, first to the REMIC I Regular
Interest LA-4-1 and then to the REMIC I Regular Interest LA-4-2, in
each case, until reduced to zero;
(F) the Class A-1A Certificates, first to the REMIC I Regular
Interest LA-1A-1, second to the REMIC I Regular Interest LA-1A-2,
third to the REMIC I Regular Interest LA-1A-3, fourth to the REMIC I
Regular Interest LA-1A-4, fifth to the REMIC I Regular Interest
LA-1A-5, sixth to the REMIC I Regular Interest LA-1A-6, seventh, to
the REMIC I Regular Interest LA-1A-7, eighth to the REMIC I Regular
Interest LA-1A-8, ninth to the REMIC I Regular Interest LA-1A-9,
tenth to the REMIC I Regular Interest LA-1A-10, eleventh to the
REMIC I Regular Interest LA-1A-11, twelfth to the REMIC I Regular
Interest LA-1A-12, thirteenth to the REMIC I Regular Interest
LA-1A-13, fourteenth, to the REMIC I Regular Interest LA-1A-14 and
then to the REMIC I Regular Interest LA-1A-15, in each case, until
reduced to zero;
(G) the Class C Certificates, first to the REMIC I Regular
Interest LC-1, second to the REMIC I Regular Interest LC-2 and then
to the REMIC I Regular Interest LC-3, in each case, until reduced to
zero;
(H) the Class D Certificates, first to the REMIC I Regular
Interest LD-1, second to the REMIC I Regular Interest LD-2 and then
to the REMIC I Regular Interest LD-3, in each case, until reduced to
zero;
(I) the Class E Certificates, first to the REMIC I Regular
Interest LE-1, second to the REMIC I Regular Interest LE-2 and then
to the REMIC I Regular Interest LE-3, in each case, until reduced to
zero;
(J) the Class F Certificates, first to the REMIC I Regular
Interest LF-1 and then to the REMIC I Regular Interest LF-2, in each
case, until reduced to zero;
(K) the Class G Certificates, first to the REMIC I Regular
Interest LG-1 and then to the REMIC I Regular Interest LG-2, in each
case, until reduced to zero;
(L) the Class H Certificates, first to the REMIC I Regular
Interest LH-1 and then to the REMIC I Regular Interest LH-2, in each
case, until reduced to zero; and
(M) the Class J Certificates, first to the REMIC I Regular
Interest LJ-1 and then to the REMIC I Regular Interest LJ-2, in each
case, until reduced to zero,
except that, solely for this purpose, all calculations of interest
with respect to the Corresponding REMIC I Regular Interests shall be made
as though the Class A-1, Class X-0, Xxxxx X-0, Class A-SB, 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 XC and
Class XP Notional Amounts were zero at all times and such that the amounts
and timing of interest distributions on each Corresponding REMIC I Regular
Interest represent the aggregate of the corresponding amounts on each
Class of Corresponding Certificates (or portion thereof) and its related
Component or Components of the Class XC and Class XP Certificates;
provided that (A) interest shall be deemed distributed on such REMIC I
Regular Interest only in the same priority and to the extent actually
distributable on such related Class of Corresponding Certificates (and pro
rata among such REMIC I Regular Interests corresponding to a related Class
of Corresponding Certificates) or related Component and (B) interest
distributable on a Class of Class X Certificates shall be distributable
pro rata among the related Components.
(iii) Any amount that remains in the REMIC I Distribution Account on
each Distribution Date after distribution of the REMIC I Distribution
Amount and Prepayment Premiums allocable to the REMIC I Regular Interests
pursuant to Section 4.01(c)(iv) shall be distributed to the Holders of the
Class R-I Certificates (but only to the extent of the Available
Distribution Amount for such Distribution Date remaining in the REMIC I
Distribution Account, if any).
(b) On each Distribution Date, to the extent of the Available
Distribution Amount for such Distribution Date, the Trustee shall transfer or be
deemed to transfer the REMIC I Distribution Amount from the REMIC I Distribution
Account to the REMIC II Distribution Account in the amounts set forth in Section
4.01(a)(ii) with respect to each Class of REMIC I Regular Interest, and
immediately thereafter, shall make distributions thereof from the REMIC II
Distribution Account to the REMIC II Regular Certificates in the order of
priority set forth in clauses (i) through (li) immediately 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, Class A-SB 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 XC and Class XP Certificates, up to
an amount equal to 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;
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-SB, Class A-4, Class A-1A, Class
XC and Class XP 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-SB and Class A-4 Certificates in reduction
of the Class Principal Balances thereof concurrently (A)(1) first, to the
Holders of the Class A-SB 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-SB
Certificates has been reduced to the Class A-SB Planned Principal Amount;
(2) second, 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 and the
Holders of the Class A-SB Certificates (up to the Class A-SB Planned
Principal Amount) have been made on such Distribution Date, until the
outstanding Class Principal Balance of the Class A-1 Certificates has been
reduced to zero; (3) third, to the Holders of the Class A-2 Certificates,
in an amount up to the 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 Holders of the Class A-SB Certificates (up to the
Class A-SB Planned Principal Amount) 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)
fourth, 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 Holders of the
Class A-SB Certificates (up to the Class A-SB Planned Principal Amount)
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) fifth, to the Holders
of the Class A-SB 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 Holders of the Class A-SB
Certificates (up to the Class A-SB Planned Principal Amount) and the Class
A-1, Class A-2 and Class A-3 Certificates have been made on such
Distribution Date, until the outstanding Class Principal Balance of the
Class A-SB Certificates has been reduced to zero and (6) sixth, 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, Class A-3 and Class A-SB
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, Class A-SB
and Class A-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, Class A-SB 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 X-0, Xxxxx
X-0, Class A-SB, Class A-4 and 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 X-0,
Xxxxx X-0, Class A-SB, 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-SB, 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 X-0,
Xxxxx X-0, Class A-SB, 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 X-0,
Xxxxx X-0, Class A-SB, 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 X-0,
Xxxxx X-0, Class A-SB, 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 X-0,
Xxxxx X-0, Class A-SB, 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 X-0,
Xxxxx X-0, Class A-SB, 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 X-0,
Xxxxx X-0, Class A-SB, 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 X-0,
Xxxxx X-0, Class A-SB, 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 X-0,
Xxxxx X-0, Class A-SB, 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 X-0,
Xxxxx X-0, Class A-SB, 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
X-0, Xxxxx X-0, Class A-SB, 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 X-0,
Xxxxx X-0, Class A-SB, 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 X-0,
Xxxxx X-0, Class A-SB, 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 X-0,
Xxxxx X-0, Class A-SB, 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 X-0,
Xxxxx X-0, Class A-SB, 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) of this
Section 4.01(b);
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)
of this Section 4.01(b), will be so made to the Holders of the Class A-1, Class
X-0, Xxxxx X-0, Class A-SB, 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, 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) of this Section 4.01(b)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) of this Section 4.01(b), in connection with
payments of principal to be made to the Holders of the Class A-1, Class X-0,
Xxxxx X-0, Class A-SB, 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) of this
Section 4.01(b) 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) of this Section 4.01(b), in connection with the
payments of principal to be made to the Holders of any Class of Sequential Pay
Certificates, shall be to the Principal Distribution Amount for such
Distribution Date, net of any payments of principal made in respect thereof to
the Holders of each other Class of Sequential Pay Certificates that has a higher
Payment Priority.
All distributions of interest made in respect of the Class XC and
Class XP Certificates on any Distribution Date pursuant to clause (i) of this
Section 4.01(b), shall be deemed to have been made in respect of all the
Components of such Class, pro rata in accordance with the respective amounts of
interest that would be payable on such Components on such Distribution Date
based on the Class XC Strip Rate and Class XP Strip Rate, as applicable, of such
Component multiplied by its Component Notional Amount, less an allocable portion
of any Prepayment Interest Shortfall, together with any amounts thereof
remaining unpaid from previous Distribution Dates.
(c) (i) On each Distribution Date, Prepayment Premiums collected
during the related Collection Period with respect to the Group 1 Mortgage Loans
will be distributed by the Trustee to the following Classes: to the Class A-1,
Class X-0, Xxxxx X-0, Class A-SB, Class A-4, 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
X-0, Xxxxx X-0, Class A-SB, Class A-4, Class A-M, Class A-J, Class B, Class C,
Class D, Class E, Class F, Class G, Class H, Class J, 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 to (i) the Holders of the Class XC
and Class XP Certificates, 70% and 30%, respectively, until and including the
Distribution Date in November 2013 and (ii) following such Distribution Date,
entirely to the Holders of the Class XC Certificates.
(ii) The "Base Interest Fraction" with respect to any Principal
Prepayment on any Mortgage Loan and with respect to any Class of REMIC II
Regular Certificates, is a fraction (a) whose numerator is the amount, if
any, by which (i) the Pass-Through Rate on such Class of Certificates
exceeds (ii) the Discount Rate and (b) whose denominator is the amount, if
any, by which (i) the Mortgage Rate on such Mortgage Loan exceeds (ii) the
Discount Rate. However, under no circumstances shall the Base Interest
Fraction be greater than one. If such Discount Rate is greater than or
equal to the lesser of (x) the Mortgage Rate on such Mortgage Loan and (y)
the Pass-Through Rate described in the preceding sentence, then the Base
Interest Fraction will equal zero. The "Discount Rate" with respect to any
applicable Prepayment Premium calculation, is the yield on the United
Stated Treasury issue with a maturity date closest to the Maturity Date
for the Mortgage Loan being prepaid (if applicable, converted to a monthly
compounded nominal yield), or an interpolation thereof, in any case as
specified and used in accordance with the related loan documents in
calculating the Prepayment Premium with respect to the related prepayment.
(iii) No Prepayment Premiums will be distributed to the holders of
the Class J, Class K, Class L, Class M, Class N, Class O and Class P
Certificates. After the Certificate Principal Balances of the Class A-1,
Class X-0, Xxxxx X-0, Class A-SB, 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, (i) 70% and 30% of all Prepayment
Premiums and yield maintenance charges with respect to the Mortgage Loans
shall be distributed to the Holders of the Class XC and Class XP
Certificates, respectively, until and including the Distribution Date in
November 2013; and (ii) following such Distribution Date, all Prepayment
Premiums and yield maintenance charges with respect to the Mortgage Loans
shall be distributed to the Holders of the Class XC Certificates.
(iv) All distributions of Prepayment Premiums made in respect of the
respective Classes of REMIC II Regular Certificates on each Distribution
Date pursuant to Section 4.01(c)(i) shall first be deemed to be
distributed from REMIC I to REMIC II in respect of the REMIC I Regular
Interests, pro rata based upon the amount of principal distributed in
respect of each Class of REMIC I Regular Interest for such Distribution
Date pursuant to Section 4.01(a)(ii).
(d) All distributions made with respect to each Class on each
Distribution Date shall be allocated pro rata among the outstanding Certificates
in such Class based on their respective Percentage Interests. Except as
otherwise provided below, all such distributions with respect to each Class of
Certificates on each Distribution Date shall be made to the Certificateholders
of the respective Class of record at the close of business on the related Record
Date and shall be made by wire transfer of immediately available funds to the
account of any such Certificateholder at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with written wiring instructions no less than five Business Days
prior to the related Record Date (which wiring instructions may be in the form
of a standing order applicable to all subsequent Distribution Dates), or
otherwise by check mailed to the address of such Certificateholder as it appears
in the Certificate Register. The final distribution on each Certificate
(determined without regard to any possible future reimbursement of any Realized
Loss or Additional Trust Fund Expense previously allocated to such Certificate)
will be made in like manner, but only upon presentation and surrender of such
Certificate at the Corporate Trust Office or such other location specified in
the notice to Certificateholders of such final distribution. Any distribution
that is to be made with respect to a Certificate in reimbursement of a Realized
Loss or Additional Trust Fund Expense previously allocated thereto, which
reimbursement is to occur after the date on which such Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Certificateholder that surrendered such Certificate
as such address last appeared in the Certificate Register or to any other
address of which the Trustee was subsequently notified in writing.
(e) Each distribution with respect to a Book-Entry Certificate shall
be paid to the Depository, as Holder thereof, and the Depository shall be
responsible for crediting the amount of such distribution to the accounts of its
Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution to
the Certificate Owners that it represents and to each indirect participating
brokerage firm (a "brokerage firm" or "indirect participating firm") for which
it acts as agent. Each brokerage firm shall be responsible for disbursing funds
to the Certificate Owners that it represents. None of the Trustee, the
Certificate Registrar, the Depositor, the Master Servicer, the Special Servicer
or the REMIC Administrator shall have any responsibility therefor except as
otherwise provided by this Agreement or applicable law.
(f) The rights of the Certificateholders to receive distributions
from the proceeds of the Trust Fund in respect of their Certificates, and all
rights and interests of the Certificateholders in and to such distributions,
shall be as set forth in this Agreement. Neither the Holders of any Class of
Certificates nor any party hereto shall in any way be responsible or liable to
the Holders of any other Class of Certificates in respect of amounts properly
previously distributed on the Certificates. Distributions in reimbursement of
Realized Losses and Additional Trust Fund Expenses previously allocated to a
Class of Certificates shall not constitute distributions of principal and shall
not result in a reduction of the related Class Principal Balance.
(g) Except as otherwise provided in Section 9.01, whenever the
Trustee expects that the final distribution with respect to any Class of
Certificates (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to such
Class of Certificates) will be made on the next Distribution Date, the Trustee
shall, as soon as practicable in the month in which such Distribution Date
occurs, mail to each Holder of such Class of Certificates as of the date of
mailing a notice to the effect that:
(i) the Trustee expects that the final distribution with respect to
such Class of Certificates will be made on such Distribution Date but only
upon presentation and surrender of such Certificates at the Corporate
Trust Office or such other location therein specified, and
(ii) no interest shall accrue on such Certificates from and after
such Distribution Date.
Any funds not distributed to any Holder or Holders of Certificates
of such Class on such Distribution Date because of the failure of such Holder or
Holders to tender their Certificates shall, on such date, be set aside and held
uninvested in trust and credited to the account or accounts of the appropriate
non-tendering Holder or Holders. If any Certificates as to which notice has been
given pursuant to this Section 4.01(g) shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice all such Certificates shall not have been surrendered for cancellation,
the Trustee, directly or through an agent, shall take such steps to contact the
remaining non-tendering Certificateholders concerning the surrender of their
Certificates as it shall deem appropriate. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders following the
first anniversary of the delivery of such second notice to the non-tendering
Certificateholders shall be paid out of such funds. No interest shall accrue or
be payable to any Certificateholder on any amount held in trust hereunder by the
Trustee as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with this Section
4.01(g). If all of the Certificates shall not have been surrendered for
cancellation by the second anniversary of the delivery of the second notice, the
Trustee shall distribute to the Class R-II Certificateholders all unclaimed
funds and other assets that remain subject hereto.
(h) Notwithstanding any other provision of this Agreement, the
Trustee shall comply with all federal withholding requirements respecting
payments to Certificateholders of interest or original issue discount that the
Trustee reasonably believes are applicable under the Code taking into account
any applicable exemptions from, or reductions in, withholding upon receipt of
appropriate IRS forms and documentation. The consent of Certificateholders shall
not be required for such withholding. In the event the Trustee does withhold any
amount from interest or original issue discount payments or advances thereof to
any Certificateholder pursuant to federal withholding requirements, the Trustee
shall indicate the amount withheld to such Certificateholders. Such amounts
shall be deemed to have been distributed to such Certificateholders for all
purposes of this Agreement.
(i) On each Distribution Date, any Excess Interest received during
the related Collection Period with respect to the Mortgage Loans shall be
withdrawn by the Trustee from the Excess Interest Distribution Account and
distributed by the Trustee to the Holders of the Class V Certificates.
(j) On the final Master Servicer Remittance Date, the Master
Servicer shall withdraw from the Certificate Account and deliver to the REMIC
Administrator who shall distribute to the Holders of the Residual Certificates,
any Loss of Value Payments transferred from the Loss of Value Reserve Fund to
the Certificate Account on the immediately preceding Master Servicer Remittance
Date in accordance with Section 3.05(a), to the extent not otherwise included in
the Available Distribution Amount for the final Distribution Date.
Section 4.02 Statements to Certificateholders; Certain Reports by
the Master Servicer and the Special Servicer.
(a) On each Distribution Date, the Trustee shall provide or make
available, either in electronic format or by first class mail to each Holder
(and, if it shall have certified to the Trustee as to its Ownership Interest in
a Class of Book-Entry Certificates, each Certificate Owner) of the Certificates
and to the Rating Agencies a statement substantially in the form set forth as
Exhibit G hereto (a "Distribution Date Statement") and based upon the
information provided by the Master Servicer in accordance with Commercial
Mortgage Securities Association guidelines, as to the distributions made on such
Distribution Date setting forth:
(i) the amount of the distribution, if any, on such Distribution
Date to the Holders of each Class of REMIC II Regular Certificates in
reduction of the Class Principal Balance thereof;
(ii) the amount of the distribution, if any, on such Distribution
Date to the Holders of each Class of REMIC II Regular Certificates
allocable to Distributable Certificate Interest and the amount of the
distribution, if any, on such Distribution Date to the Holders of each
Class of REMIC II Regular Certificates allocable to Prepayment Premiums;
(iii) [RESERVED];
(iv) [RESERVED];
(v) the Available Distribution Amount;
(vi) the aggregate amount of P&I Advances made in respect of the
Mortgage Pool and in respect of each Loan Group for such Distribution
Date;
(vii) the aggregate amount of xxxxxxxxxxxx X&X Advances that had
been outstanding with respect to the Mortgage Pool and with respect to
each Loan Group as of the close of business on the related Determination
Date and the aggregate amount of unreimbursed Servicing Advances that had
been outstanding with respect to the Mortgage Pool and with respect to
each Loan Group as of the close of business on the related Determination
Date;
(viii) 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;
(ix) as of the Determination Date for the related Distribution Date,
the number, aggregate unpaid principal balance and specific identification
(by loan number) of Mortgage Loans (A) delinquent 30-59 days, (B)
delinquent 60-89 days, (C) delinquent 90 or more days, (D) current but
specially serviced or in foreclosure but not a REO Property and (E)
identification of Mortgage Loans the Mortgagor for which is subject to
bankruptcy;
(x) 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;
(xi) the Accrued Certificate Interest and Distributable Certificate
Interest in respect of each Class of REMIC II Regular Certificates for
such Distribution Date;
(xii) 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;
(xiii) 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;
(xiv) the Pass Through Rate for each Class of REMIC II Regular
Certificates for such Distribution Date;
(xv) 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;
(xvi) 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;
(xvii) 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;
(xviii) the Certificate Factor for each Class of REMIC II Regular
Certificates immediately following such Distribution Date;
(xix) the aggregate amount of servicing fees paid to the Master
Servicer and the Special Servicer, collectively and separately, during the
related Collection Period;
(xx) 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;
(xxi) current and cumulative outstanding Advances with respect to
the Mortgage Pool and with respect to each Loan Group;
(xxii) current prepayments and curtailments;
(xxiii) the number and aggregate principal balance of Mortgage Loans
as to which foreclosure proceedings have been commenced as to the related
Mortgaged Property;
(xxiv) the ratings from all Rating Agencies for all Classes of
Certificates;
(xxv) [RESERVED];
(xxvi) the amounts held in the Excess Liquidation Proceeds Account,
stating separately the amounts, if any, attributable to the Mortgage
Loans;
(xxvii) the CMSA Reconciliation of Funds Report;
(xxviii) material breaches of mortgage loan representations and
warranties of which the Trustee, the Master Servicer or the Special
Servicer has received written notice;
(xxix) as of the related Determination Date: (i) as to any REO
Property sold during the related Collection Period, the date of the
related determination by the Special Servicer that it has recovered all
payments which it expects to be finally recoverable and the amount of the
proceeds of such sale deposited into the applicable Certificate Account,
and (ii) the aggregate amount of other revenues collected by the Special
Servicer with respect to each REO Property during the related Collection
Period and credited to the Certificate Account, in each case identifying
such REO Property by the loan number of the Mortgage Pool; and
(xxx) the amount of any Appraisal Reductions effected during the
related Collection Period on a loan-by-loan basis and the total Appraisal
Reductions in effect as of such Distribution Date, with respect to the
Mortgage Pool.
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) of this Section 4.02(a), 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 (xviii) of this Section 4.02(a)), 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) of this Section 4.02(a), 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.
(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 a
Whole Loan, either (i) deposit into the Distribution Account from its own funds
an amount equal to the aggregate amount of P&I Advances, if any, to be made in
respect of the related Distribution Date, (ii) apply amounts held in the
Certificate Account for future distribution to Certificateholders in subsequent
months in discharge of any such obligation to make P&I Advances, or (iii) make
P&I Advances in the form of any combination of (i) and (ii) aggregating the
total amount of P&I Advances to be made; provided that if Late Collections of
any of the delinquent principal and/or interest in respect of which it is to
make P&I Advances on any Master Servicer Remittance Date are then on deposit in
the Certificate Account, the Master Servicer shall use such Late Collections
(net of any Master Servicing Fees, Liquidation Fees and Workout Fees payable
therefrom) to make such P&I Advances. With respect to each Whole Loan, on each
Master Servicer Remittance Date, the Master Servicer shall either (i) deposit
into the related Whole Loan Custodial Account from its own funds an amount equal
to the aggregate amount of P&I Advances, if any, to be made in respect of the
related Distribution Date on such Whole Loan, (ii) apply amounts held in the
related Whole Loan Custodial Account for future distribution in subsequent
months in discharge of any such obligation to make P&I Advances, or (iii) make
P&I Advances in the form of any combination of (i) and (ii) aggregating the
total amount of P&I Advances to be made; provided that if Late Collections of
any of the delinquent principal and/or interest in respect of which it is to
make P&I Advances on any Master Servicer Remittance Date are then on deposit in
the related Whole Loan Custodial Account, the Master Servicer shall use such
Late Collections (net of any Master Servicing Fees, Liquidation Fees and Workout
Fees payable therefrom and any portion thereof required to be paid to the
related Companion Loan Holder in the case of a Whole Loan under the related
Intercreditor Agreement) to make such P&I Advances. Any amounts held in the
Certificate Account or if a Whole Loan is involved, the related Whole Loan
Custodial Account, for future distribution and so used to make P&I Advances
(other than the Late Collections of the delinquent principal and/or interest
contemplated by the proviso to the preceding sentence) shall be appropriately
reflected in the Master Servicer's records and replaced by the Master Servicer
by deposit into the Certificate Account or, if a Whole Loan is involved, the
related Whole Loan Custodial Account, on or before the next succeeding
Determination Date (to the extent not previously replaced through the deposit of
Late Collections of the delinquent principal and/or interest in respect of which
such P&I Advances were made). If, as of 3:00 p.m., New York City time, on any
Master Servicer Remittance Date, the Master Servicer shall not have made any P&I
Advance required to be made on such date pursuant to this Section 4.03(a) (and
shall not have delivered to the Trustee the requisite Officer's Certificate and
documentation related to a determination of nonrecoverability of a P&I Advance),
then the Trustee shall provide notice of such failure to a Servicing Officer of
the Master Servicer by facsimile transmission sent to telecopy no. (213)
345-7240 (or such alternative number provided by the Master Servicer to the
Trustee in writing) and by telephone at telephone no. (000) 000-0000 (or such
alternative number provided by the Master Servicer to the Trustee in writing) as
soon as possible, but in any event before 4:00 p.m., New York City time, on such
Master Servicer Remittance Date. If, after such notice, the Trustee does not
receive the full amount of such P&I Advances by the close of business (New York
City time) on such Master Servicer Remittance Date, then (i) unless the Trustee
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. For the avoidance of doubt, neither the Master Servicer nor the
Trustee shall make a P&I Advance on any Companion Loan.
(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 Loans
for any Distribution Date shall equal, subject to subsection (c) of this Section
4.03, 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 Loan, then, in the event of subsequent delinquencies thereon,
the interest portion of the P&I Advance in respect of such Required Appraisal
Loan for the related Distribution Date shall be reduced (it being herein
acknowledged that there shall be no reduction in the principal portion of such
P&I Advance) to equal the product of (i) the amount of the interest portion of
such P&I Advance for such Required Appraisal Loan for such Distribution Date
without regard to this proviso, multiplied by (ii) a fraction, expressed as a
percentage, the numerator of which is equal to the Stated Principal Balance of
such Required Appraisal Loan immediately prior to such Distribution Date, net of
the related Appraisal Reduction Amount, if any, and the denominator of which is
equal to the Stated Principal Balance of such Required Appraisal Loan
immediately prior to such Distribution Date; provided, further, the Master
Servicer shall not advance Excess Interest with respect to ARD Loans or a
Prepayment Premium.
(c) Notwithstanding anything herein to the contrary, no P&I Advance
shall be required to be made hereunder if such P&I Advance would, if made,
constitute a Nonrecoverable P&I Advance. In addition, with respect to the
Mortgage Loans other than Mortgage Loans included in a Whole Loan,
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 a 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 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 related
Companion Loan Holder (in the case of a Whole Loan), 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 Loan when made, or remains outstanding when such Loan becomes
a Past Grace Period Loan, in which case such interest shall begin to accrue when
such Loan becomes a Past Grace Period Loan, for so long as such P&I Advance is
outstanding (or, in the case of Advance Interest payable to the Master Servicer,
if earlier, until the Late Collection of the delinquent principal and/or
interest in respect of which such P&I Advance was made has been received by the
Master Servicer). Such interest will be paid: first, out of any Default Charges
as set forth in Section 3.27; and second, at any time coinciding with or
following the reimbursement of such P&I Advance, out of general collections on
the Mortgage Loans and any REO Properties on deposit in the Certificate Account
or, if a Whole Loan is involved, out of general collections on deposit in the
related Whole Loan Custodial Account allocable to the related Mortgage Loan. 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 a
Whole Loan is involved are deposited into the related Whole Loan Custodial
Account, and in no event shall interest accrue in accordance with this Section
4.03(d) on any P&I Advance as to which the corresponding Late Collection had
been received as of the related date on which such P&I Advance was made.
Interest accrued on any P&I Advance made with respect to any Whole Loan under
this Section 4.03 shall be payable (unless required to be paid to the related
Companion Loan Holder under any Intercreditor Agreement): (i) first, out of
Default Charges collected on or in respect of the related Whole Loan during the
same Collection Period in which such P&I Advance is reimbursed, (ii) second, to
the extent that the Default Charges described in the immediately preceding
clause (i) are insufficient, but only if such P&I Advance is being reimbursed at
the same time or if such P&I Advance has been previously reimbursed, out of any
other collections that were made on or in respect of such Whole Loan allocable
to the related Mortgage Loan, and (iii) third, solely with respect to such Whole
Loan, to the extent that Default Charges or other collections described in the
immediately preceding clauses (i) and (ii) 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 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 Loan or a Final Determination has been
made with respect to the related 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 X-0, Xxxxx
X-0, Class A-SB, 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 and in the case of Realized Losses and Additional Trust Fund
Expenses to:
(i) the Class A-1 Certificates, first to the REMIC I Regular
Interest LA-1-1, second to the REMIC I Regular Interest LA-1-2 and then to
the REMIC I Regular Interest LA-1-3, in each case, until reduced to zero;
(ii) the Class A-2 Certificates, first to the REMIC I Regular
Interest LA-2-1, second to the REMIC I Regular Interest LA-2-2, third to
the REMIC I Regular Interest LA-2-3, fourth to the REMIC I Regular
Interest LA-2-4, fifth to the REMIC I Regular Interest LA-2-5, sixth to
the REMIC I Regular Interest LA-2-6 and then to the REMIC I Regular
Interest LA-2-7, in each case, until reduced to zero;
(iii) the Class A-3 Certificates, first to the REMIC I Regular
Interest LA-3-1, second to the REMIC I Regular Interest LA-3-2, third to
the REMIC I Regular Interest LA-3-3, fourth to the REMIC I Regular
Interest LA-3-4, fifth to the REMIC I Regular Interest LA-3-5 and then to
the REMIC I Regular Interest LA-3-6, in each case, until reduced to zero;
(iv) the Class A-SB Certificates, first to the REMIC I Regular
Interest LA-SB-1, second to the REMIC I Regular Interest LA-SB-2, third to
the REMIC I Regular Interest LA-SB-3, fourth to the REMIC I Regular
Interest LA-SB-4 and then to the REMIC I Regular Interest LA-SB-5, in each
case, until reduced to zero;
(v) the Class A-4 Certificates, first to the REMIC I Regular
Interest LA-4-1 and then to the REMIC I Regular Interest LA-4-2, in each
case, until reduced to zero;
(vi) the Class A-1A Certificates, first to the REMIC I Regular
Interest LA-1A-1, second to the REMIC I Regular Interest LA-1A-2, third to
the REMIC I Regular Interest LA-1A-3, fourth to the REMIC I Regular
Interest LA-1A-4, fifth to the REMIC I Regular Interest LA-1A-5, sixth to
the REMIC I Regular Interest LA-1A-6, seventh, to the REMIC I Regular
Interest LA-1A-7, eighth to the REMIC I Regular Interest LA-1A-8, ninth to
the REMIC I Regular Interest LA-1A-9, tenth to the REMIC I Regular
Interest LA-1A-10, eleventh to the REMIC I Regular Interest LA-1A-11,
twelfth to the REMIC I Regular Interest LA-1A-12, thirteenth to the REMIC
I Regular Interest LA-1A-13, fourteenth, to the REMIC I Regular Interest
LA-1A-14 and then to the REMIC I Regular Interest LA-1A-15, in each case,
until reduced to zero;
(vii) the Class C Certificates, first to the REMIC I Regular
Interest LC-1, second to the REMIC I Regular Interest LC-2 and then to the
REMIC I Regular Interest LC-3, in each case, until reduced to zero;
(viii) the Class D Certificates, first to the REMIC I Regular
Interest LD-1, second to the REMIC I Regular Interest LD-2 and then to the
REMIC I Regular Interest LD-3, in each case, until reduced to zero;
(ix) the Class E Certificates, first to the REMIC I Regular Interest
LE-1, second to the REMIC I Regular Interest LE-2 and then to the REMIC I
Regular Interest LE-3, in each case, until reduced to zero;
(x) the Class F Certificates, first to the REMIC I Regular Interest
LF-1 and then to the REMIC I Regular Interest LF-2, in each case, until
reduced to zero;
(xi) the Class G Certificates, first to the REMIC I Regular Interest
LG-1 and then to the REMIC I Regular Interest LG-2, in each case, until
reduced to zero;
(xii) the Class H Certificates, first to the REMIC I Regular
Interest LH-1 and then to the REMIC I Regular Interest LH-2, in each case,
until reduced to zero; and
(xiii) the Class J Certificates, first to the REMIC I Regular
Interest LJ-1 and then to the REMIC I Regular Interest LJ-2, in each case,
until reduced to zero.
Section 4.05 Interest Reserve Account.
The Master Servicer shall establish and maintain the Interest
Reserve Account in the Trustee's name for the benefit of the Certificateholders.
The Interest Reserve Account 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 (or February, if the related
Distribution Date is the final Distribution Date)of each calendar year, 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.
(a) The Certificates will be substantially in the respective forms
annexed hereto as Exhibits A-1 through and including A-27; 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 X-0, Xxxxx X-0,
Class A-SB, 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 XC and Class XP Certificates will be
issuable in denominations corresponding to initial Notional Balances as of the
Closing Date of not less than $1,000,000 and any whole dollar denomination in
excess thereof; and the Class B, Class C, Class D, Class E, Class F, Class G,
Class H, Class J, Class K, Class L, Class M, Class N, Class O 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; 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)) of this Section 5.02(c), 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 Initial Purchasers
or the Depositor to any obligation or liability (including obligations or
liabilities under ERISA, Section 4975 of the Code or any such Similar Law) in
addition to those set forth in this 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) of this Section 5.02(c) or, with
respect to the ERISA Restricted Certificates, the Opinions of Counsel or other
certification described in clause (ii) of this Section 5.02(c). 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 Initial Purchasers, the Certificate
Registrar or the Trust Fund. With respect to transfers of Book-Entry
Certificates only, to the extent the purchase or holding of a Certificate
described in this Section 5.02(c) would be restricted by ERISA, the Code or
Similar Law, each Certificate Owner of such Certificate shall be deemed to
represent that it is not a Person specified in clause (i)(a) or (i)(b) of this
Section 5.02(c)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) of this Section
5.02(c), or the Opinion of Counsel or other certification described in clause
(ii) of this Section 5.02(c). 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) of this Section
5.02(c) 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 in the immediately preceding
clause (B), 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-SB, 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,
Class XC and Class XP Certificates shall initially be issued as one or more
Certificates registered in the name of the Depository or its nominee and, except
as provided in subsection (c) of this Section 5.03, 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) of this Section 5.03, 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.
None of the Depositor, the Master Servicer, the Special Servicer,
the REMIC Administrator or any director, officer, employee or agent of any of
the foregoing shall be under any liability to the Trust, the Certificateholders
or any Companion Loan Holder (in the case of a Whole Loan) 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
a Whole Loan is affected, the interests of the Certificateholders and the
related Companion Loan Holder (as a collective whole); provided, however, that
if a Whole Loan and/or a Companion Loan Holder is involved, such expenses, costs
and liabilities shall be payable out of the related Whole Loan Custodial Account
and shall also be payable out of the Certificate Account if (A) amounts on
deposit in the related Whole Loan Custodial Account are insufficient therefor
and (B) either (i) such expenses, costs and liabilities do not relate solely to
such Companion Loan or (ii) if such expenses, costs and liabilities relate
solely to such Companion Loan, only to the extent of deposits in the Certificate
Account related directly to the 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 Companion Loan related to a Whole Loan,
out of the related Whole Loan Custodial Account and out of the Certificate
Account to the extent of deposits therein related directly to the Whole Loan).
For the avoidance of doubt, such expenses, costs and liabilities shall not be
deemed to relate solely to the Companion Loan related to a Whole Loan for the
sole reason that the related action was instituted by or against the related
Companion Loan 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 a Whole Loan Custodial Account any amount required
to be so deposited under this Agreement that continues unremedied for
three Business Days following the date on which such deposit was first
required to be made, but in no event later than the Master Servicer
Remittance Date before the related Distribution Date, or (B) to deposit
into, or to remit to the Trustee for deposit into, the Distribution
Account on any Master Servicer Remittance Date, the full amount of any
Master Servicer Remittance Amount and Withheld Amounts, respectively,
required to be so deposited or remitted under this Agreement on such date;
provided, that if the Master Servicer fails to make any deposit
contemplated by this Section 7.01(a)(i)(B), 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 (C) any failure by the Master Servicer to remit to the related
Companion Loan 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
a Whole Loan Custodial Account or the applicable REO Account any amount
required to be so deposited or remitted under this Agreement that
continues unremedied for two Business Days following the date on which
such deposit or remittance was first required to be made, but in no event
later than two Business Days before the related Distribution Date; or
(iii) any failure by the Master Servicer to remit to the Trustee for
deposit into the Distribution Account, on any Master Servicer Remittance
Date, the full amount of P&I Advances required to be made on such date
unless wired by 10:00 a.m. on the Distribution Date; provided, that if the
Master Servicer fails to make any deposit contemplated by this Section
7.01(a)(iii), then the Master Servicer shall pay to the Trustee, for the
account of the Trustee, interest on such late remittance at the
Reimbursement Rate from and including such Master Servicer Remittance Date
to but excluding the related Distribution Date; or
(iv) any failure by the Master Servicer to timely make any Servicing
Advance required to be made by it pursuant to this Agreement, which
failure continues unremedied for a period of three Business Days following
the date on which notice shall have been given to the Master Servicer by
the Trustee or by any other party to this Agreement, as provided in
Section 3.11(f); or
(v) any failure by the Special Servicer to timely direct the Master
Servicer to make any Servicing Advance (including any Emergency Advance)
required to be made by the Master Servicer at its direction pursuant to
this Agreement, which failure is not remedied by providing direction to
the Master Servicer within three Business Days following the date on which
notice has been given to the Special Servicer by the Trustee as provided
in Section 3.11(f); or
(vi) any failure on the part of the Master Servicer or the Special
Servicer duly to observe or perform in any material respect any other of
the covenants or agreements thereof contained in this Agreement, which
failure continues unremedied for a period of 30 days after the date on
which written notice of such failure, requiring the same to be remedied,
shall have been given to the Master Servicer or the Special Servicer, as
the case may be, by any other party hereto, or to the Master Servicer or
the Special Servicer, as the case may be, with a copy to each other party
hereto, by the Holders of Certificates entitled to at least 25% of the
Voting Rights; provided, however, that if such covenant or agreement is
capable of being cured and the Master Servicer or Special Servicer, as
applicable, is diligently pursuing such cure, such 30-day period shall be
extended for an additional 60 days; or
(vii) any failure on the part of the REMIC Administrator duly to
observe or perform in any material respect any of the covenants or
agreements thereof contained in this Agreement, which failure continues
unremedied for a period of 30 days after the date on which written notice
of such failure, requiring the same to be remedied, shall have been given
to the REMIC Administrator by any other party hereto, or to the REMIC
Administrator, with a copy to each other party hereto, by the Holders of
Certificates entitled to at least 25% of the Voting Rights; provided,
however, that if such covenant or agreement is capable of being cured and
the REMIC Administrator is diligently pursuing such cure, such 30-day
period shall be extended for an additional 60 days; or
(viii) any breach on the part of the Master Servicer, the Special
Servicer or the REMIC Administrator of any representation or warranty
thereof contained in this Agreement that materially and adversely affects
the interests of any Class of Certificateholders and that continues
unremedied for a period of 30 days after the date on which notice of such
breach, requiring the same to be remedied, shall have been given to the
Master Servicer, the Special Servicer or the REMIC Administrator, as the
case may be, by any other party hereto, or to the Master Servicer, the
Special Servicer or the REMIC Administrator, as the case may be, with a
copy to each other party hereto, by the Holders of Certificates entitled
to at least 25% of the Voting Rights; provided, however, that if such
representation or warranty is capable of being cured and the Master
Servicer or Special Servicer, as applicable, is diligently pursuing such
cure, such 30-day period shall be extended for an additional 60 days; or
(ix) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law
for the appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings, or for the
winding up or liquidation of its affairs, shall have been entered against
the Master Servicer, the Special Servicer or the REMIC Administrator and
such decree or order shall have remained in force undischarged or unstayed
for a period of 60 days; or
(x) the Master Servicer, the Special Servicer or the REMIC
Administrator shall consent to the appointment of a conservator, receiver,
liquidator, trustee or similar official in any bankruptcy, insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings of or relating to it or of or relating to all or substantially
all of its property; or
(xi) the Master Servicer, the Special Servicer or the REMIC
Administrator shall admit in writing its inability to pay its debts
generally as they become due, file a petition to take advantage of any
applicable bankruptcy, insolvency or reorganization statute, make an
assignment for the benefit of its creditors, voluntarily suspend payment
of its obligations, or take any corporate action in furtherance of the
foregoing; or
(xii) Moody's provides notice to the Master Servicer or the Special
Servicer, as applicable, to the effect that the rating or ratings on one
or more Classes of Certificates will be the subject of a downgrade or
withdrawal, citing servicing concerns relating to the Master Servicer or
the Special Servicer, as the case may be, as the sole or a material factor
in such action; provided, however, that the Master Servicer or Special
Servicer, as applicable shall have 60 days to resolve such matters to the
satisfaction of Moody's (or such longer time period as may be agreed in
writing by Moody's) prior to the downgrade of any Class of Certificates
and in such case, such notice from Moody's shall not be deemed to be an
Event of Default; or
(xiii) either the Master Servicer or the Special Servicer is no
longer listed on S&P's Select Servicer List as a U.S. Commercial Mortgage
Master Servicer or a U.S. Commercial Mortgage Special Servicer, as
applicable, and is not relisted thereon within 60 days.
Each Event of Default listed as items (iv) through (xiii) of this Section
7.01(a) shall constitute an Event of Default only with respect to the relevant
party; provided that if a single entity acts or any two or more Affiliates act
as Master Servicer, Special Servicer and REMIC Administrator, or in any two or
more of the foregoing capacities, an Event of Default in one capacity (other
than an event described in clauses (xii) or (xiii) of this Section 7.01(a)) 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 clause (xii) and clause (xiii) of this Section 7.01(a)) at the
written direction of the Holders of Certificates entitled to at least 51% of the
Voting Rights, or if the relevant Event of Default is the one described in
clause (x) and clause (xi) of subsection (a) of this Section 7.01(a), 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 as a
Companion Loan Holder (in the case of a Whole Loan)). With respect to each of
the Event of Defaults listed as clauses (xii) and (xiii) of this Section
7.01(a), 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) or (xiii) and if the Master Servicer provides the
Trustee with the appropriate "request for proposal" materials within the five
Business Days after such termination, then such Master Servicer shall continue
to serve as Master Servicer, if requested to do so by the Trustee, 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, 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 Sellers.
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 "Aa3" by Xxxxx'x and
"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 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. Notwithstanding the
foregoing, if the Trustee meets the requirements of clauses (i) through (iv)
above, but does not meet the requirements of clause (v) above, the Trustee shall
be deemed to meet the requirements of such clause (v) if (a) it appoints a
fiscal agent as a back-up advancer that satisfies the requirements of such
clause (v) and (b) such fiscal agent shall have assumed in writing all
obligations of the Trustee to make Advances under this Agreement as and when
required of the Trustee. 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, all
Certificateholders and all Companion Loan Holders. 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, all Companion
Loan Holders, 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, all Companion Loan Holders, 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. The Master Servicer shall give notice to all Companion Loan
Holders of any resignation or removal of the Trustee and appointment of a
successor trustee.
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, any 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 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 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 (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 any 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 any 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 any
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 a Whole Loan is involved, in the related Whole Loan Custodial
Account. In addition, the Master Servicer shall transfer all amounts required to
be transferred to the Distribution Account on such Master Servicer Remittance
Date from the Certificate Account or if a Whole Loan is involved, the related
Whole Loan Custodial Account pursuant to the first paragraph of Section 3.04(e).
Upon confirmation that such final deposits have been made, the Trustee shall
release or cause to be released to the purchaser or its designee, the Mortgage
Files for the remaining Mortgage Loans and shall execute all assignments,
endorsements and other instruments furnished to it by the purchaser, as shall be
necessary to effectuate transfer of the Mortgage Loans and REO Properties
remaining in 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 all
Companion Loan Holders 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
any 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 any
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 A-1, Class X-0, Xxxxx
X-0, Class A-SB, Class A-4, Class A-1A, Class XC, Class XP, Class A-M, Class
A-J, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J,
Class K, Class L, Class M, Class N, Class O and Class P Certificates 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 XC and Class XP
Certificates represent "specified portions," within the meaning of Treasury
Regulations Section 1.860G-1(a)(2), of the interest payments on the REMIC I
Regular Interests corresponding to their respective 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 (i) the REMIC I Regular Interests,
the REMIC II Regular Certificates (other than the Class XP Certificates) is the
Rated Final Distribution Date and (ii) the Class XP Certificates is the
Distribution Date in November 2013.
(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 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 a 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
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
with respect to the Grantor Trust, 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 with respect to
the Grantor Trust, 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 in
the time or times and in the manner required by the Code. 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 related 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 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 2006-6, 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) (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 10 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 and
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 Business 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) of this Section 11.05 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 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 and 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 L,
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. In addition, in the event that the
Companion Loan related to a Whole Loan is deposited into a commercial mortgage
securitization, each Reporting Servicer shall provide to the Person who signs
the Xxxxxxxx-Xxxxx Certification with respect to the securitization of the
Companion Loan related to a Whole Loan a certification in the form attached
hereto as Exhibit L (a "Performance Certification") (which shall address the
matters contained in such certification, but solely with respect to the related
Companion Loan) on which such Person, the entity for which the Person acts as an
officer (if the Person is an individual), and such entity's officers, directors
and Affiliates 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 and
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 May 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
May 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 all 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. 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 any holder of the Companion Loan related to a Whole Loan,
(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) of this Section 12.01(a)) 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
related Mortgage Loan Seller without such 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 related Companion Loan Holder
related to a Whole Loan without such Companion Loan 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) of this Section
12.01(a)) 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 any holder of the
Companion Loan related to a Whole Loan; 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) of this Section 12.01(b) 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), this 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 the Grantor Trust to fail to
qualify as a grantor trust at any time that any Certificates are outstanding.
(e) Promptly after the execution of any such amendment, the Trustee
shall furnish a copy of the amendment to each Certificateholder and all
Companion Loan Holders.
(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 holder of
the Companion Loan related to a Whole Loan shall not operate to terminate this
Agreement or the Trust, nor entitle such Certificateholder's or Companion Loan
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 holder of the Companion Loan related to
a Whole Loan 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 any Companion Loan Holder from time to
time as partners or members of an association; nor shall any Certificateholder
or any Companion Loan 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 Companion Loan 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 holder of the
Companion Loan related to a Whole Loan 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 a 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, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, telecopy
number: (000) 000-0000; and with a 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 2006-6, and with a 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, CWCapital Asset
Management LLC, CWCapital Asset Management LLC, 000 00xx Xxxxxx XX, Xxxxx
0000, Xxxxxxxxxx, X.X. 00000, Attention: Xxxxx Xxxxxxxxx (BACM 2006-6),
telecopy number: (000) 000-0000, with a copy to: CWCapital Asset
Management LLC, One Xxxxxxx River Place, 00 Xxxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxxxxxx 00000, Attention: Xxxx Xxxx (BACM 2006-6), 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 2006-6, telecopy
number: (000) 000-0000;
(v) in the case of the Rating Agencies, (A) Xxxxx'x Investors
Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
CMBS--Monitoring, facsimile number (000) 000-0000; (B) Standard & Poor's
Ratings Services, Inc., 00 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000-0000, Attention: Commercial Mortgage Group Surveillance Manager,
telecopy number (000) 000-0000;
(vi) in the case of the initial Directing Certificateholder, Cadim
TACH, inc., c/o CDP Capital Real Estate Advisors, CDP Capital Center, 0000
Xxxx-Xxxx-Xxxxxxxx Xxxxx, Xxxxx X-000, Xxxxxxxx, Xxxxxx X0X 0X0, Xxxxxx,
Attention: Corporate Secretary, telecopy number (000) 000-0000, with a
copy to: CWCapital Investments LLC, 0000 Xxxxx Xxxxxx, Xxxx Xxxx, Xxxxx
000, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000, Attention: Xxx Xxxxx (BACM 2006-6),
telecopy number (000) 000-0000, and with a copy to: CWCapital Investments
LLC, 000 00xx Xxxxxx XX, Xxxxx 0000, Xxxxxxxxxx, X.X. 00000, Attention:
Xxxxxxxx Xxxxxxxxx (BACM 2006-6), telecopy number (000) 000-0000;
(vii) in the case of the initial EZ Storage Companion Loan Holder,
Bank of America, National Association, 000 Xxxxx Xxxxx Xxxxxx,
XX0-000-00-00, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Xxxxxxx Xxxxx,
telecopy number: (000) 000-0000 (with copies to Xxxx X. Xxxxxxx, Esq.,
Assistant General Counsel, at Bank of America Corporate Center, 000 Xxxxx
Xxxxx Xxxxxx, 30th Floor, NC1-002-29-01, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
and to Xxxxx X. XxXxxx, Esq., Cadwalader, Xxxxxxxxxx & Xxxx LLP, 227 West
Trade Street, Suite 2400, Charlotte, North Carolina 28202);
(viii) in the case of the initial Chicago Loop Companion Loan
Holder, Bear Xxxxxxx Commercial Mortgage, Inc., addressed to Bear Xxxxxxx
Commercial Mortgage, Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: J. Xxxxxxxxxxx Xxxxxxx, Senior Managing Director, Commercial
Mortgage Department, telecopy number: (000) 000-0000 (with copies to
Xxxxxx X. Xxxxxxxxx, Xx., Managing Director, Legal Department) 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. The
Companion Loan Holder related to a Whole Loan and any designees thereof acting
on behalf of or exercising the rights of such Companion Loan 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 a Mortgage Loan Seller
pursuant to Section 2.03.
(b) The Master Servicer shall promptly provide notice to each Rating
Agency with respect to each of the following of which it has actual knowledge:
(i) the resignation or removal of the Trustee and the appointment of
a successor; 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, any Companion Loan 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.
(b) For the avoidance of doubt, it is noted that to the extent that
any Rating Agency, any Companion Loan 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.
Section 12.11 Insolvency.
The Master Servicer, Special Servicer, Depositor and Trustee shall
each notify the Depositor and the Trustee of any of the events enumerated in
Item 1.03 of Form 8-K with respect to any of the Master Servicer, Special
Servicer, Depositor or Trustee as least two Business Days prior to the effective
date thereof and shall provide the Depositor and the Trustee with all
information required by the Depositor to comply with its reporting obligation
under Item 1.03 of Form 8-K not later than the effective date of any such event.
[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
CWCAPITAL ASSET MANAGEMENT LLC, as
Special Servicer,
By: /s/ Xxxxx X. Xxxxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Managing Director
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 29th day of November, 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
----------------------------------
Xxxxxxxx X. Xxxxxxx
Notary Public
[Notarial Seal]
My commission expires:
February 4, 0000
XXXXX XX XXXXX XXXXXXXX
ss:
COUNTY OF MECKLENBURG
On the 29th day of November, 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
----------------------------------
Xxxxxxxx X. Xxxxxxx
Notary Public
[Notarial Seal]
My commission expires:
February 4, 0000
XXXXX XX Xxxxxxxx of )
) ss.:
COUNTY OF Columbia )
On the 27th day of November 2006, before me, a notary public in and
for said State, personally appeared Xxxx Xxxxxxxxx, known to me to be a Managing
Director of CWCAPITAL ASSET MANAGEMENT LLC, 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/ Xxxxxx X. Xxxxxx
----------------------------------
Notary Public
[Notarial Seal]
My commission expires:
7/31/11
----------------------
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 29th day of November 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
[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 2006-6
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
5.2260% per annum Certificate as of the Issue Date:
$[40,000,000]
Date of Pooling and Servicing Agreement: Class Principal Balance of all the
November 1, 2006 Class A-1 Certificates as of the Issue
Date:
$40,000,000
Cut-off Date: Initial Pool Balance:
November 1, 2006 $2,462,208,204
Issue Date:
November 29, 2006
First Distribution Date:
December 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Special Servicer:
CWCapital Asset Management LLC
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,
CWCAPITAL ASSET MANAGEMENT LLC, 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) 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 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: November 29, 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: ___________________________________________________________.
-----------------------------------------------
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 2006-6
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
5.3090% per annum Certificate as of the Issue Date:
$[481,700,000]
Date of Pooling and Servicing Agreement: Class Principal Balance of all the
November 1, 2006 Class A-2 Certificates as of the Issue
Date:
$481,700,000
Cut-off Date: Initial Pool Balance:
November 1, 2006 $2,462,208,204
Issue Date:
November 29, 2006
First Distribution Date:
December 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Special Servicer:
CWCapital Asset Management LLC
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,
CWCAPITAL ASSET MANAGEMENT LLC, 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) 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 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: November 29, 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: ___________________________________________________________.
-----------------------------------------------
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 2006-6
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
5.3690% per annum Certificate as of the Issue Date:
$[285,000,000]
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class A-3 Certificates as of the Issue
November 1, 2006 Date:
$285,000,000
Cut-off Date: Initial Pool Balance:
November 1, 2006 $2,462,208,204
Issue Date:
November 29, 2006
First Distribution Date:
December 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Special Servicer:
CWCapital Asset Management LLC
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,
CWCAPITAL ASSET MANAGEMENT LLC, 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) 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 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: November 29, 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: ___________________________________________________________.
-----------------------------------------------
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-SB Certificate
CLASS A-SB COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2006-6
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
5.3400% per annum Certificate as of the Issue Date:
$[56,830,000]
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class A-SB Certificates as of the
November 1, 2006 Issue Date:
$56,830,000
Cut-off Date: Initial Pool Balance:
November 1, 2006 $2,462,208,204
Issue Date:
November 29, 2006
First Distribution Date:
December 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Special Servicer:
CWCapital Asset Management LLC
Certificate No.: A-SB-[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,
CWCAPITAL ASSET MANAGEMENT LLC, 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) 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 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-SB Certificates referred to in the within
mentioned Agreement.
Dated: November 29, 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: ___________________________________________________________.
-----------------------------------------------
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-4 Certificate
CLASS A-4 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2006-6
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
5.3560% per annum Certificate as of the Issue Date:
$[430,105,000]
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class A-4 Certificates as of the Issue
November 1, 2006 Date:
$430,105,000
Cut-off Date: Initial Pool Balance:
November 1, 2006 $2,462,208,204
Issue Date:
November 29, 2006
First Distribution Date:
December 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Special Servicer:
CWCapital Asset Management LLC
Certificate No.: A-4-[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,
CWCAPITAL ASSET MANAGEMENT LLC, 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) 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 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: November 29, 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: ___________________________________________________________.
-----------------------------------------------
Signature by or on behalf of Assignor
-----------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-6
Form of Class A-1A Certificate
CLASS A-1A COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2006-6
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
5.3470% per annum Certificate as of the Issue Date:
$[429,910,000]
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class A-1A Certificates as of the
November 1, 2006 Issue Date:
$429,910,000
Cut-off Date: Initial Pool Balance:
November 1, 2006 $2,462,208,204
Issue Date:
November 29, 2006
First Distribution Date:
December 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Special Servicer:
CWCapital Asset Management LLC
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,
CWCAPITAL ASSET MANAGEMENT LLC, 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) 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 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: November 29, 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: ___________________________________________________________.
-----------------------------------------------
Signature by or on behalf of Assignor
-----------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-7
Form of Class XC Certificate
CLASS XC COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2006-6
[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] [500,000,000]
[462,208,204]
Date of Pooling and Servicing Class Notional Amount of all the Class
Agreement: XC Certificates as of the Issue Date:
November 1, 2006 $2,462,208,204
Cut-off Date: Initial Pool Balance:
November 1, 2006 $2,462,208,204
Issue Date:
November 29, 2006
First Distribution Date:
December 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Special Servicer:
CWCapital Asset Management LLC
Certificate No.: XC-[1][2][3][4][5] 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,
CWCAPITAL ASSET MANAGEMENT LLC, 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 XC Certificates referred to in the within mentioned
Agreement.
Dated: November 29, 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: ___________________________________________________________.
-----------------------------------------------
Signature by or on behalf of Assignor
-----------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-8
Form of Class XP Certificate
CLASS XP COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2006-6
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] [500,000,000]
[400,433,000]
Date of Pooling and Servicing Class Notional Amount of all the Class
Agreement: XP Certificates as of the Issue Date:
November 1, 2006 $2,400,433,000
Cut-off Date: Initial Pool Balance:
November 1, 2006 $2,462,208,204
Issue Date:
November 29, 2006
First Distribution Date:
December 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Special Servicer:
CWCapital Asset Management LLC
Certificate No.: XP-[1][2][3][4][5] CUSIP No.: [__________](1)
[__________](2)
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,
CWCAPITAL ASSET MANAGEMENT LLC, 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) 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 XP Certificates referred to in the within mentioned
Agreement.
Dated: November 29, 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: ___________________________________________________________.
-----------------------------------------------
Signature by or on behalf of Assignor
-----------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-9
Form of Class A-M Certificate
CLASS A-M COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2006-6
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
5.3900% per annum Certificate as of the Issue Date:
$[246,220,000]
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class A-M Certificates as of the Issue
November 1, 2006 Date:
$246,220,000
Cut-off Date: Initial Pool Balance:
November 1, 2006 $2,462,208,204
Issue Date:
November 29, 2006
First Distribution Date:
December 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Special Servicer:
CWCapital Asset Management LLC
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,
CWCAPITAL ASSET MANAGEMENT LLC, 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) 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 A-M Certificates referred to in the within mentioned
Agreement.
Dated: November 29, 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: ___________________________________________________________.
-----------------------------------------------
Signature by or on behalf of Assignor
-----------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-10
Form of Class A-J Certificate
CLASS A-J COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2006-6
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
5.4210% per annum Certificate as of the Issue Date:
$[193,900,000]
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class A-J Certificates as of the Issue
November 1, 2006 Date:
$193,900,000
Cut-off Date: Initial Pool Balance:
November 1, 2006 $2,462,208,204
Issue Date:
November 29, 2006
First Distribution Date:
December 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Special Servicer:
CWCapital Asset Management LLC
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,
CWCAPITAL ASSET MANAGEMENT LLC, 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) 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 A-J Certificates referred to in the within mentioned
Agreement.
Dated: November 29, 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: ___________________________________________________________.
-----------------------------------------------
Signature by or on behalf of Assignor
-----------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-11
Form of Class B Certificate
CLASS B COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2006-6
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
5.4800% per annum Certificate as of the Issue Date:
$[49,244,000]
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class B Certificates as of the Issue
November 1, 2006 Date:
$49,244,000
Cut-off Date: Initial Pool Balance:
November 1, 2006 $2,462,208,204
Issue Date:
November 29, 2006
First Distribution Date:
December 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Special Servicer:
CWCapital Asset Management LLC
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,
CWCAPITAL ASSET MANAGEMENT LLC, 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) 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 B Certificates referred to in the within mentioned
Agreement.
Dated: November 29, 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: ___________________________________________________________.
-----------------------------------------------
Signature by or on behalf of Assignor
-----------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-12
Form of Class C Certificate
CLASS C COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE, SERIES 2006-6
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
5.5100% per annum Certificate as of the Issue Date:
$[24,622,000]
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class C Certificates as of the Issue
November 1, 2006 Date:
$24,622,000
Cut-off Date: Initial Pool Balance:
November 1, 2006 $2,462,208,204
Issue Date:
November 29, 2006
First Distribution Date:
December 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Special Servicer:
CWCapital Asset Management LLC
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,
CWCAPITAL ASSET MANAGEMENT LLC, 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) 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 C Certificates referred to in the within mentioned
Agreement.
Dated: November 29, 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: ___________________________________________________________.
-----------------------------------------------
Signature by or on behalf of Assignor
-----------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-13
Form of Class D Certificate
CLASS D COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2006-6
[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
5.5500% per annum Certificate as of the Issue Date:
$[30,778,000]
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class D Certificates as of the Issue
November 1, 2006 Date:
$30,778,000
Cut-off Date: Initial Pool Balance:
November 1, 2006 $2,462,208,204
Issue Date:
November 29, 2006
First Distribution Date:
December 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Special Servicer:
CWCapital Asset Management LLC
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,
CWCAPITAL ASSET MANAGEMENT LLC, 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: November 29, 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: ___________________________________________________________.
-----------------------------------------------
Signature by or on behalf of Assignor
-----------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-14
Form of Class E Certificate
CLASS E COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2006-6
[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:
$[30,777,000]
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class E Certificates as of the Issue
November 1, 2006 Date:
$30,777,000
Cut-off Date: Initial Pool Balance:
November 1, 2006 $2,462,208,204
Issue Date:
November 29, 2006
First Distribution Date:
December 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Special Servicer:
CWCapital Asset Management LLC
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,
CWCAPITAL ASSET MANAGEMENT LLC, 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: November 29, 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: ___________________________________________________________.
-----------------------------------------------
Signature by or on behalf of Assignor
-----------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-15
Form of Class F Certificate
CLASS F COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2006-6
[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:
$[27,700,000]
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class F Certificates as of the Issue
November 1, 2006 Date:
$27,700,000
Cut-off Date: Initial Pool Balance:
November 1, 2006 $2,462,208,204
Issue Date:
November 29, 2006
First Distribution Date:
December 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Special Servicer:
CWCapital Asset Management LLC
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,
CWCAPITAL ASSET MANAGEMENT LLC, 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: November 29, 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: ___________________________________________________________.
-----------------------------------------------
Signature by or on behalf of Assignor
-----------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-16
Form of Class G Certificate
CLASS G COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2006-6
[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:
$[27,700,000]
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class G Certificates as of the Issue
November 1, 2006 Date:
$27,700,000
Cut-off Date: Initial Pool Balance:
November 1, 2006 $2,462,208,204
Issue Date:
November 29, 2006
First Distribution Date:
December 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Special Servicer:
CWCapital Asset Management LLC
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,
CWCAPITAL ASSET MANAGEMENT LLC, 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: November 29, 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: ___________________________________________________________.
-----------------------------------------------
Signature by or on behalf of Assignor
-----------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-17
Form of Class H Certificate
CLASS H COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2006-6
[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:
$[30,778,000]
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class H Certificates as of the Issue
November 1, 2006 Date:
$30,778,000
Cut-off Date: Initial Pool Balance:
November 1, 2006 $2,462,208,204
Issue Date:
November 29, 2006
First Distribution Date:
December 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Special Servicer:
CWCapital Asset Management LLC
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,
CWCAPITAL ASSET MANAGEMENT LLC, 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: November 29, 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: ___________________________________________________________.
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Signature by or on behalf of Assignor
-----------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-18
Form of Class J Certificate
CLASS J COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2006-6
[RULE 144A](1) [REG S](2) CERTIFICATE
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
Variable Certificate as of the Issue Date:
$[6,155,000]
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class J Certificates as of the Issue
November 1, 2006 Date:
$6,155,000
Cut-off Date: Initial Pool Balance:
November 1, 2006 $2,462,208,204
Issue Date:
November 29, 2006
First Distribution Date:
December 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Special Servicer:
CWCapital Asset Management LLC
Certificate No.: J-[1] CUSIP No.: [__________](1)
[__________](2)
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(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,
CWCAPITAL ASSET MANAGEMENT LLC, 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 J Certificates referred to in the within mentioned
Agreement.
Dated: November 29, 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: ___________________________________________________________.
-----------------------------------------------
Signature by or on behalf of Assignor
-----------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-19
Form of Class K Certificate
CLASS K COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2006-6
[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:
$[9,233,000]
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class K Certificates as of the Issue
November 1, 2006 Date:
$9,233,000
Cut-off Date: Initial Pool Balance:
November 1, 2006 $2,462,208,204
Issue Date:
November 29, 2006
First Distribution Date:
December 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Special Servicer:
CWCapital Asset Management LLC
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,
CWCAPITAL ASSET MANAGEMENT LLC, 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 K Certificates referred to in the within mentioned
Agreement.
Dated: November 29, 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: ___________________________________________________________.
-----------------------------------------------
Signature by or on behalf of Assignor
-----------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-20
Form of Class L Certificate
CLASS L COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2006-6
[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:
$[9,234,000]
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class L Certificates as of the Issue
November 1, 2006 Date:
$9,234,000
Cut-off Date: Initial Pool Balance:
November 1, 2006 $2,462,208,204
Issue Date:
November 29, 2006
First Distribution Date:
December 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Special Servicer:
CWCapital Asset Management LLC
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,
CWCAPITAL ASSET MANAGEMENT LLC, 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: November 29, 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: ___________________________________________________________.
-----------------------------------------------
Signature by or on behalf of Assignor
-----------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-21
Form of Class M Certificate
CLASS M COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2006-6
[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:
$[3,078,000]
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class M Certificates as of the Issue
November 1, 2006 Date:
$3,078,000
Cut-off Date: Initial Pool Balance:
November 1, 2006 $2,462,208,204
Issue Date:
November 29, 2006
First Distribution Date:
December 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Special Servicer:
CWCapital Asset Management LLC
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,
CWCAPITAL ASSET MANAGEMENT LLC, 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: November 29, 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: ___________________________________________________________.
-----------------------------------------------
Signature by or on behalf of Assignor
-----------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-22
Form of Class N Certificate
CLASS N COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2006-6
[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:
$[9,233,000]
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class N Certificates as of the Issue
November 1, 2006 Date:
$9,233,000
Cut-off Date: Initial Pool Balance:
November 1, 2006 $2,462,208,204
Issue Date:
November 29, 2006
First Distribution Date:
December 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Special Servicer:
CWCapital Asset Management LLC
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,
CWCAPITAL ASSET MANAGEMENT LLC, 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: November 29, 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: ___________________________________________________________.
-----------------------------------------------
Signature by or on behalf of Assignor
-----------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-23
Form of Class O Certificate
CLASS O COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2006-6
[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:
$[9,233,000]
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class O Certificates as of the Issue
November 1, 2006 Date:
$9,233,000
Cut-off Date: Initial Pool Balance:
November 1, 2006 $2,462,208,204
Issue Date:
November 29, 2006
First Distribution Date:
December 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Special Servicer:
CWCapital Asset Management LLC
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,
CWCAPITAL ASSET MANAGEMENT LLC, 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: November 29, 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: ___________________________________________________________.
-----------------------------------------------
Signature by or on behalf of Assignor
-----------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-24
Form of Class P Certificate
CLASS P COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2006-6
[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:
$[30,778,204]
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class P Certificates as of the Issue
November 1, 2006 Date:
$30,778,204
Cut-off Date: Initial Pool Balance:
November 1, 2006 $2,462,208,204
Issue Date:
November 29, 2006
First Distribution Date:
December 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Special Servicer:
CWCapital Asset Management LLC
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,
CWCAPITAL ASSET MANAGEMENT LLC, 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:
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Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class P Certificates referred to in the within mentioned
Agreement.
Dated: November 29, 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: ___________________________________________________________.
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Signature by or on behalf of Assignor
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Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-25
Form of Class R-I Certificate
CLASS R-I COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2006-6
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:
November 1, 2006 100%
Cut-off Date: Initial Pool Balance:
November 1, 2006 $2,462,208,204
Issue Date:
November 29, 2006
First Distribution Date:
December 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Special Servicer:
CWCapital Asset Management LLC
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,
CWCAPITAL ASSET MANAGEMENT LLC, 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 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.
"Permitted Transferee": means any Transferee of this 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 (or is permitted to
be under the related partnership agreement) 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": means 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": means 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": means any person other than a U.S. Person. "U.S. Person":
means 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: November 29, 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: ___________________________________________________________.
-----------------------------------------------
Signature by or on behalf of Assignor
-----------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-26
Form of Class R-II Certificate
CLASS R-II COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2006-6
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:
November 1, 2006 100%
Cut-off Date: Initial Pool Balance:
November 1, 2006 $2,462,208,204
Issue Date:
November 29, 2006
First Distribution Date:
December 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Special Servicer:
CWCapital Asset Management LLC
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,
CWCAPITAL ASSET MANAGEMENT LLC, 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 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.
"Permitted Transferee": means any Transferee of this 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 (or is permitted to
be under the related partnership agreement) 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": means 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": means 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": means any person other than a U.S. Person. "U.S. Person":
means 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-II Certificates referred to in the within
mentioned Agreement.
Dated: November 29, 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: ___________________________________________________________.
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Signature by or on behalf of Assignor
-----------------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-27
Form of Class V Certificate
CLASS V COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2006-6
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:
November 1, 2006 [100%]
Cut-off Date: Initial Pool Balance:
November 1, 2006 $2,462,208,204
Issue Date:
November 29, 2006
First Distribution Date:
December 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Special Servicer:
CWCapital Asset Management LLC
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,
CWCAPITAL ASSET MANAGEMENT LLC, 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 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: November 29, 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: ___________________________________________________________.
-----------------------------------------------
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 2006-6
----------------------------------------------------------------
Ladies and Gentlemen:
This letter is delivered pursuant to Section 5.02 of the Pooling
and Servicing Agreement dated as of November 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, CWCapital
Asset Management LLC, 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
2006-6 (the "Certificates"), in connection with the transfer by
_________________ (the "Seller") to the undersigned (the "Purchaser") of
$_______________ aggregate Certificate Balance of Class ___ Certificates (the
"Certificate"). Capitalized terms used and not otherwise defined herein shall
have the respective meanings ascribed to such terms in the Pooling and Servicing
Agreement.
In connection with such transfer, the Purchaser hereby represents
and warrants to you and the addressees hereof as follows:
(1) Check one of the following:*
|_| The Purchaser is an institutional "accredited investor" (an
entity meeting the requirements of Rule 501(a)(1), (2), (3) or (7) of Regulation
D under the Securities Act of 1933, as amended (the "1933 Act")) and has such
knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks of its investment in the Certificates, and the
Purchaser and any accounts for which it is acting are each able to bear the
economic risk of the Purchaser's or such account's investment. The Purchaser is
acquiring the Certificates purchased by it for its own account or for one or
more accounts (each of which is an "institutional accredited investor") as to
each of which the Purchaser exercises sole investment discretion. The Purchaser
hereby undertakes to reimburse the Trust Fund for any costs incurred by it in
connection with this transfer.
--------------------------
* Each Purchaser must include one of the following two certifications.
|_| The Purchaser is a "qualified institutional buyer" within the
meaning of Rule 144A ("Rule 144A") promulgated under the Securities Act of 1933,
as amended (the "1933 Act"). The Purchaser is aware that the transfer is being
made in reliance on Rule 144A, and the Purchaser has had the opportunity to
obtain the information required to be provided pursuant to paragraph (d)(4)(i)
of Rule 144A.
(2) The Purchaser's intention is to acquire the Certificate (a)
for investment for the Purchaser's own account or (b) for resale (i) to
"qualified institutional buyers" in transactions under Rule 144A, and
not in any event with the view to, or for resale in connection with, any
distribution thereof, or (ii) to institutional "accredited investors"
meeting the requirements of Rule 501(a)(1), (2), (3) or (7) of
Regulation D promulgated under the 1933 Act and applicable state
securities laws, pursuant to any other exemption from the registration
requirements of the 1933 Act and applicable state securities laws,
subject in the case of this clause (ii) to (w) the receipt by the
Certificate Registrar of a letter substantially in the form hereof, (x)
the receipt by the Certificate Registrar of an opinion of counsel
acceptable to the Certificate Registrar that such reoffer, resale,
pledge or transfer is in compliance with the 1933 Act, (y) the receipt
by the Certificate Registrar of such other evidence acceptable to the
Certificate Registrar that such reoffer, resale, pledge or transfer is
in compliance with the 1933 Act and other applicable laws and (z) a
written undertaking to reimburse the Trust for any costs incurred by it
in connection with the proposed transfer. The Purchaser understands that
the Certificate (and any subsequent Certificate) has not been registered
under the 1933 Act, by reason of a specified exemption from the
registration provisions of the 1933 Act which depends upon, among other
things, the bona fide nature of the Purchaser's investment intent (or
intent to resell to only certain investors in certain exempted
transactions) as expressed herein.
(3) The Purchaser has reviewed the Private Placement Memorandum
relating to the Certificates (the "Private Placement Memorandum") and
the agreements and other materials referred to therein and has had the
opportunity to ask questions and receive answers concerning the terms
and conditions of the transactions contemplated by the Private Placement
Memorandum.
(4) The Purchaser acknowledges that the Certificate (and any
Certificate issued on transfer or exchange thereof) has not been
registered or qualified under the 1933 Act or the securities laws of any
State or any other jurisdiction, and that the Certificate cannot be
resold unless it is registered or qualified thereunder or unless an
exemption from such registration or qualification is available.
(5) The Purchaser hereby undertakes to be bound by the terms and
conditions of the Pooling and Servicing Agreement in its capacity as an
owner of a Certificate or Certificates, as the case may be (each, a
"Certificateholder"), in all respects as if it were a signatory thereto.
This undertaking is made for the benefit of the Trust, the Certificate
Registrar and all Certificateholders present and future.
(6) The Purchaser will not sell or otherwise transfer any portion
of the Certificate or Certificates, except in compliance with Section
5.02 of the Pooling and Servicing Agreement.
(7) Check one of the following:*
|_| The Purchaser is a U.S. Tax Person (as defined below) and it
has attached hereto an Internal Revenue Service ("IRS") Form W-9 (or successor
form).
|_| The Purchaser is not a "U.S. Tax Person" and under applicable
law in effect on the date hereof, no taxes will be required to be withheld by
the Certificate Registrar (or its agent) with respect to distributions to be
made on the Certificate. The Purchaser has attached hereto [(i) a duly executed
IRS Form W-8BEN (or successor form), which identifies such Purchaser as the
beneficial owner of the Certificate and states that such Purchaser is not a U.S.
Tax Person, (ii) two duly executed copies of IRS Form W-8IMY (with all
appropriate attachments) or (iii)]** two duly executed copies of IRS Form W-8ECI
(or successor form), which identify such Purchaser as the beneficial owner of
the Certificate and state that interest and original issue discount on the
Certificate and Permitted Investments is, or is expected to be, effectively
connected with a United States trade or business. The Purchaser agrees to
provide to the Certificate Registrar updated [IRS Form W-8BEN, IRS Form W-8IMY
or]** IRS 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.
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).
--------------------------
* Each Purchaser must include one of the two alternative certifications.
** Omit for Class R-I and Class R-II.
(8) Please make all payments due on the Certificates:***
|_| (A) by wire transfer to the following account at a bank or
entity in New York, New York, having appropriate facilities therefor:
Bank: _________________________________________
ABA#: _________________________________________
Account #: ___________________________________
Attention: ___________________________________
|_| (B) by mailing a check or draft to the following address:
________________________________________________
________________________________________________
________________________________________________
Very truly yours,
_________________________________
[The Purchaser]
By: _____________________________
Name:
Title:
Dated:
-----------------------------
*** 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., Commercial Mortgage Pass-Through
Certificate, Series 2006-6, Class R-[I] [II], 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 2006-6
Re: Banc of America Commercial Mortgage Inc., Commercial Mortgage
Pass-Through Certificates, Series 2006-6, 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 November 1,
2006, by and among Banc of America Commercial Mortgage Inc., as Depositor,
Bank of America, National Association, as Master Servicer, CWCapital Asset
Management LLC, 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 2006-6
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 November 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, CWCapital Asset Management
LLC, 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:
CWCAPITAL ASSET MANAGEMENT LLC
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 2006-6
------------------------------------------------------------
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 2006-6, Class __
(the "Certificate") issued pursuant to that Pooling and Servicing Agreement,
dated as of November 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, CWCapital Asset Management LLC, 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:
(1) The Purchaser either is not (a) an employee benefit plan
subject to the fiduciary responsibility provisions of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA") or a
plan subject to Section 4975 of the Internal Revenue Code of 1986,
as amended (the "Code"), or a governmental plan (as defined in
Section 3(32) of ERISA) subject to any federal, state or local law
("Similar Law") which is, to a material extent, similar to the
foregoing provisions of ERISA or the Code (each a "Plan") or (b) a
person acting on behalf of or using the assets of any such Plan
(including an entity whose underlying assets include Plan assets by
reason of investment in the entity by any such Plan and the
application of Department of Labor Regulation ss. 2510.3-101),
other than (except with respect to the Class V Certificates and the
Residual Certificates) an insurance company using the assets of its
general account under circumstances whereby the purchase and
holding of Offered Private Certificates by such insurance company
would be exempt from the prohibited transaction provisions of ERISA
and the Code under both Sections I and III of Prohibited
Transaction Class Exemption 95-60, or (except with respect to the
Class V Certificates and the Residual Certificates) will deliver
the opinion contemplated by 3 below.
(2) Except for the Class V Certificates and the Residual
Certificates (which may not transferred unless the Purchaser can
make the representation described in 1 above), the Purchaser is
purchasing Certificates, which at the time of purchase are rated
"BBB-" or better by at least one of Fitch 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 (Banc of America Securities LLC) and/or Prohibited
Transaction Exemption 90-30 (Bear, Xxxxxxx & Co. Inc.), each as
amended by Prohibited Transaction Exemption 97-34, Prohibited
Transaction Exemption 2000-58 and Prohibited Transaction Exemption
2002-41 and (b) is an "accredited investor" as defined in Rule
501(a)(1) of Regulation D of the Securities and Exchange Commission
under the Securities Act of 1933, as amended.
(3) Except for the Class V Certificates and the Residual
Certificates (which may not transferred unless the Purchaser can
make the representation described in 1 above), the Purchaser
understands that if the Purchaser is a Person referred to in 1(a)
or (b) above and cannot make the representation in 2 above, such
Purchaser is required to provide to the Certificate Registrar an
opinion of counsel in form and substance satisfactory to the
Certificate Registrar and the Depositor to the effect that the
acquisition and holding of such Certificate by such purchaser or
transferee will not constitute or result in a non-exempt
"prohibited transaction" within the meaning of ERISA, Section 4975
of the Code or any Similar Law, and will not subject the Trustee,
the Certificate Registrar, the Master Servicer, the Special
Servicer, the Initial Purchasers or the Depositor to any obligation
or liability (including obligations or liabilities under ERISA,
Section 4975 of the Code or any such Similar Law) in addition to
those set forth in the 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 Initial
Purchasers, 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.
000 Xxxxx Xxxxx Xxxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxx
Re: Pooling and Servicing Agreement dated as of November 1, 2006
(the "Agreement") by and among Banc of America Commercial
Mortgage Inc. as Depositor, Bank of America, National
Association, as Master Servicer, CWCapital Asset Management
LLC, as Special Servicer, and Xxxxx Fargo Bank, N.A., as
Trustee and REMIC Administrator, for the Certificateholders of
the Banc of America Commercial Mortgage Inc., Commercial
Mortgage Pass-Through Certificates, Series 2006-6
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 2006-6 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 12/11/2006
0000 Xxx Xxxxxxxxx Xxxx Record Date: 11/30/2006
Xxxxxxxx, XX 00000-0000 Determination Date: 12/06/2006
-----------------------------------------------------------------------------------------------------------------------------------
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
Advance Summary 24
Modified Loan Detail 25
Historical Liquidated Loan Detail 26
Historical Bond / Collateral Realized Loss Reconciliation 27
Interest Shortfall Reconciliation Detail 28 - 29
Defeased Loan Detail 30
Supplemental Reporting 31
-------------------------------------------------------------------------------
Depositor Master Servicer Special Servicer
-------------------------------------- ------------------------------------------- --------------------------------------
Banc of America Commercial Mortgage Bank of America, N.A. CW Capital Asset Management LLC.
Inc. 000 Xxxx Xxxxx Xxxxxx 0000 Xxxxxxxxxxxx Xxxxxx, XX
000 Xxxxx Xxxxx Xxxxxx Xxxxx 000 Xxxxx 000
Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000-0000
Contact: Xxxxxxx Xxxxx Contact: Capital Markets Servicing Group Contact: Xxxxxxxx Xxxx
Phone Number: (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 31
--------- ----------------------------------------------
|[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 2006-6 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 12/11/2006
0000 Xxx Xxxxxxxxx Xxxx Record Date: 11/30/2006
Xxxxxxxx, XX 00000-0000 Determination Date: 12/06/2006
-----------------------------------------------------------------------------------------------------------------------------------
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-SB 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
----------------------------------------------------------------------------------------------
XC 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00
XP 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 31
--------- ----------------------------------------------
|[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 2006-6 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 12/11/2006
0000 Xxx Xxxxxxxxx Xxxx Record Date: 11/30/2006
Xxxxxxxx, XX 00000-0000 Determination Date: 12/06/2006
-----------------------------------------------------------------------------------------------------------------------------------
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-SB 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
---------------------------------------------------------------------------
XC 0.00000000 0.00000000 0.00000000 0.00000000
XP 0.00000000 0.00000000 0.00000000 0.00000000
---------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 3 of 31
--------- ----------------------------------------------
|[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 2006-6 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 12/11/2006
0000 Xxx Xxxxxxxxx Xxxx Record Date: 11/30/2006
Xxxxxxxx, XX 00000-0000 Determination Date: 12/06/2006
-----------------------------------------------------------------------------------------------------------------------------------
Reconciliation Detail
Stated Beginning Principal Unpaid Beginning Scheduled Unscheduled Principal
Loan Group Balance Principal Balance Principal Principal Adjustments
---------- -------------------------- ----------------- --------- ----------- -----------
1 0.00 0.00 0.00 0.00 0.00
2 0.00 0.00 0.00 0.00 0.00
---------- -------------------------- ----------------- --------- ----------- -----------
Total 0.00 0.00 0.00 0.00 0.00
Realized Stated Ending Unpaid Ending Current Principal
Loan Group Loss Principal Balance Principal Balance Distribution Amount
---------- -------- ----------------- ----------------- -------------------
1 0.00 0.00 0.00 0.00
2 0.00 0.00 0.00 0.00
---------- -------- ----------------- ----------------- -------------------
Total 0.00 0.00 0.00 0.00
Certificate Interest Reconciliation
---------------------------------------------------------------------------------------------
Accrued Net Aggregate Distributable Distributable
Accrual Accrual Certificate Prepayment Certificate Certificate Interest
Class Dates Days Interest Interest Shortfall Interest Adjustment
---------------------------------------------------------------------------------------------
A-1 0 0 0.00 0.00 0.00 0.00
A-2 0 0 0.00 0.00 0.00 0.00
A-3 0 0 0.00 0.00 0.00 0.00
A-SB 0 0 0.00 0.00 0.00 0.00
A-4 0 0 0.00 0.00 0.00 0.00
A-1A 0 0 0.00 0.00 0.00 0.00
A-M 0 0 0.00 0.00 0.00 0.00
A-J 0 0 0.00 0.00 0.00 0.00
XC 0 0 0.00 0.00 0.00 0.00
XP 0 0 0.00 0.00 0.00 0.00
B 0 0 0.00 0.00 0.00 0.00
C 0 0 0.00 0.00 0.00 0.00
D 0 0 0.00 0.00 0.00 0.00
E 0 0 0.00 0.00 0.00 0.00
F 0 0 0.00 0.00 0.00 0.00
G 0 0 0.00 0.00 0.00 0.00
H 0 0 0.00 0.00 0.00 0.00
J 0 0 0.00 0.00 0.00 0.00
K 0 0 0.00 0.00 0.00 0.00
L 0 0 0.00 0.00 0.00 0.00
M 0 0 0.00 0.00 0.00 0.00
N 0 0 0.00 0.00 0.00 0.00
O 0 0 0.00 0.00 0.00 0.00
P 0 0 0.00 0.00 0.00 0.00
---------------------------------------------------------------------------------------------
Totals 0 0.00 0.00 0.00 0.00
---------------------------------------------------------------------------------------------
Certificate Interest Reconciliation
-----------------------------------------------------------------
Additional Remaining Unpaid
WAC CAP Trust Fund Interest Distributable
Class Shortfall Expenses Distribution Certificate Interest
-----------------------------------------------------------------
A-1 0.00 0.00 0.00 0.00
A-2 0.00 0.00 0.00 0.00
A-3 0.00 0.00 0.00 0.00
A-SB 0.00 0.00 0.00 0.00
A-4 0.00 0.00 0.00 0.00
A-1A 0.00 0.00 0.00 0.00
A-M 0.00 0.00 0.00 0.00
A-J 0.00 0.00 0.00 0.00
XC 0.00 0.00 0.00 0.00
XP 0.00 0.00 0.00 0.00
B 0.00 0.00 0.00 0.00
C 0.00 0.00 0.00 0.00
D 0.00 0.00 0.00 0.00
E 0.00 0.00 0.00 0.00
F 0.00 0.00 0.00 0.00
G 0.00 0.00 0.00 0.00
H 0.00 0.00 0.00 0.00
J 0.00 0.00 0.00 0.00
K 0.00 0.00 0.00 0.00
L 0.00 0.00 0.00 0.00
M 0.00 0.00 0.00 0.00
N 0.00 0.00 0.00 0.00
O 0.00 0.00 0.00 0.00
P 0.00 0.00 0.00 0.00
-----------------------------------------------------------------
Totals 0.00 0.00 0.00 0.00
-----------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 4 of 31
--------- ----------------------------------------------
|[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 2006-6 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 12/11/2006
0000 Xxx Xxxxxxxxx Xxxx Record Date: 11/30/2006
Xxxxxxxx, XX 00000-0000 Determination Date: 12/06/2006
-----------------------------------------------------------------------------------------------------------------------------------
Other Required Information
--------------------------------------------------------------------------------
Available Distribution Amount (1) 0.00
Master Servicing Fee Summary
Current Period Accrued Master Servicing Fees 0.00
Less Delinquent Master Servicing Fees 0.00
Less Reductions to Master Servcing Fees 0.00
Plus Master Servicing Fees for Delinquent Payments Received 0.00
Plus Adjustments for Prior Master Servicing Calculation 0.00
Total Master Servicing Fees Collected 0.00
(1) The Available Distribution Amount includes any Prepayment Premiums.
Appraisal Reduction Amount
-------------------------------------------------
Appraisal Cumulative Most Recent
Loan Reduction ASER App. Red.
Number Amount Amount Date
-------------------------------------------------
-------------------------------------------------
Total
-------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 5 of 31
--------- ----------------------------------------------
|[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 2006-6 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 12/11/2006
0000 Xxx Xxxxxxxxx Xxxx Record Date: 11/30/2006
Xxxxxxxx, XX 00000-0000 Determination Date: 12/06/2006
-----------------------------------------------------------------------------------------------------------------------------------
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 31
--------- ----------------------------------------------
|[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 2006-6 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 12/11/2006
0000 Xxx Xxxxxxxxx Xxxx Record Date: 11/30/2006
Xxxxxxxx, XX 00000-0000 Determination Date: 12/06/2006
-----------------------------------------------------------------------------------------------------------------------------------
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-XX
A-4
A-1A
A-M
A-J
XC
XP
B
C
D
E
F
G
H
J
K
L
M
N
O
P
---------------------------------------------------------------------------------------------------------------
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 31
--------- ----------------------------------------------
|[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 2006-6 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 12/11/2006
0000 Xxx Xxxxxxxxx Xxxx Record Date: 11/30/2006
Xxxxxxxx, XX 00000-0000 Determination Date: 12/06/2006
-----------------------------------------------------------------------------------------------------------------------------------
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 31
--------- ----------------------------------------------
|[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 2006-6 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 12/11/2006
0000 Xxx Xxxxxxxxx Xxxx Record Date: 11/30/2006
Xxxxxxxx, XX 00000-0000 Determination Date: 12/06/2006
-----------------------------------------------------------------------------------------------------------------------------------
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 28
--------- ----------------------------------------------
|[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 2006-6 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 12/11/2006
0000 Xxx Xxxxxxxxx Xxxx Record Date: 11/30/2006
Xxxxxxxx, XX 00000-0000 Determination Date: 12/06/2006
-----------------------------------------------------------------------------------------------------------------------------------
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
the borrower 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 31
--------- ----------------------------------------------
|[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 2006-6 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 12/11/2006
0000 Xxx Xxxxxxxxx Xxxx Record Date: 11/30/2006
Xxxxxxxx, XX 00000-0000 Determination Date: 12/06/2006
-----------------------------------------------------------------------------------------------------------------------------------
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 28
--------- ----------------------------------------------
|[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 2006-6 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 12/11/2006
0000 Xxx Xxxxxxxxx Xxxx Record Date: 11/30/2006
Xxxxxxxx, XX 00000-0000 Determination Date: 12/06/2006
-----------------------------------------------------------------------------------------------------------------------------------
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 31
--------- ----------------------------------------------
|[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 2006-6 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 12/11/2006
0000 Xxx Xxxxxxxxx Xxxx Record Date: 11/30/2006
Xxxxxxxx, XX 00000-0000 Determination Date: 12/06/2006
-----------------------------------------------------------------------------------------------------------------------------------
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 the borrower 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 31
--------- ----------------------------------------------
|[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 2006-6 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 12/11/2006
0000 Xxx Xxxxxxxxx Xxxx Record Date: 11/30/2006
Xxxxxxxx, XX 00000-0000 Determination Date: 12/06/2006
-----------------------------------------------------------------------------------------------------------------------------------
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 31
--------- ----------------------------------------------
|[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 2006-6 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 12/11/2006
0000 Xxx Xxxxxxxxx Xxxx Record Date: 11/30/2006
Xxxxxxxx, XX 00000-0000 Determination Date: 12/06/2006
-----------------------------------------------------------------------------------------------------------------------------------
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 31
--------- ----------------------------------------------
|[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 2006-6 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 12/11/2006
0000 Xxx Xxxxxxxxx Xxxx Record Date: 11/30/2006
Xxxxxxxx, XX 00000-0000 Determination Date: 12/06/2006
-----------------------------------------------------------------------------------------------------------------------------------
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 Paying Agent 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 31
--------- ----------------------------------------------
|[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 2006-6 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 12/11/2006
0000 Xxx Xxxxxxxxx Xxxx Record Date: 11/30/2006
Xxxxxxxx, XX 00000-0000 Determination Date: 12/06/2006
-----------------------------------------------------------------------------------------------------------------------------------
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 31
--------- ----------------------------------------------
|[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 2006-6 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 12/11/2006
0000 Xxx Xxxxxxxxx Xxxx Record Date: 11/30/2006
Xxxxxxxx, XX 00000-0000 Determination Date: 12/06/2006
-----------------------------------------------------------------------------------------------------------------------------------
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 31
--------- ----------------------------------------------
|[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 2006-6 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 12/11/2006
0000 Xxx Xxxxxxxxx Xxxx Record Date: 11/30/2006
Xxxxxxxx, XX 00000-0000 Determination Date: 12/06/2006
-----------------------------------------------------------------------------------------------------------------------------------
Principal Prepayment Detail
--------------------------------------------------------------------------------------------------------
Principal Prepayment Amount
Offering Document --------------------------------------
Loan Number Loan Group Cross-Reference Payoff Amount Curtailment Amount
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
Totals
--------------------------------------------------------------------
--------------------------------------------------------------------
Prepayment Penalties
--------------------------------------------------
Loan Number Percentage Premium Yield Maintenance Premium
--------------------------------------------------------------------
--------------------------------------------------------------------
Totals
--------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 19 of 31
--------- ----------------------------------------------
|[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 2006-6 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 12/11/2006
0000 Xxx Xxxxxxxxx Xxxx Record Date: 11/30/2006
Xxxxxxxx, XX 00000-0000 Determination Date: 12/06/2006
-----------------------------------------------------------------------------------------------------------------------------------
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 31
--------- ----------------------------------------------
|[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 2006-6 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 12/11/2006
0000 Xxx Xxxxxxxxx Xxxx Record Date: 11/30/2006
Xxxxxxxx, XX 00000-0000 Determination Date: 12/06/2006
-----------------------------------------------------------------------------------------------------------------------------------
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 0 - Current 4 - Assumed Scheduled Payment
But Still in Grace Period 1 - One Month Delinquent (Performing Matured Loan)
B - Late Payment But Less 2 - Two Months Delinquent 7 - Foreclosure
Than 1 Month Delinquent 3 - Three or More Months Delinquent 9 - REO
(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 31
--------- ----------------------------------------------
|[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 2006-6 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 12/11/2006
0000 Xxx Xxxxxxxxx Xxxx Record Date: 11/30/2006
Xxxxxxxx, XX 00000-0000 Determination Date: 12/06/2006
-----------------------------------------------------------------------------------------------------------------------------------
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 31
--------- ----------------------------------------------
|[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 2006-6 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 12/11/2006
0000 Xxx Xxxxxxxxx Xxxx Record Date: 11/30/2006
Xxxxxxxx, XX 00000-0000 Determination Date: 12/06/2006
-----------------------------------------------------------------------------------------------------------------------------------
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 31
--------- ----------------------------------------------
|[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 2006-6 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 12/11/2006
0000 Xxx Xxxxxxxxx Xxxx Record Date: 11/30/2006
Xxxxxxxx, XX 00000-0000 Determination Date: 12/06/2006
-----------------------------------------------------------------------------------------------------------------------------------
Advance Summary
Current Period Interest
Current P&I Outstanding P&I Outstanding Servicing on P&I and Servicing
Loan Group Advances Advances Advances Advances Paid
---------- ----------- --------------- --------------------- -----------------------
1 0.00 0.00 0.00 0.00
2 0.00 0.00 0.00 0.00
---------- ----------- --------------- --------------------- -----------------------
Totals 0.00 0.00 0.00 0.00
Copyright, Xxxxx Fargo Bank, N.A. Page 24 of 31
--------- ----------------------------------------------
|[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 2006-6 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 12/11/2006
0000 Xxx Xxxxxxxxx Xxxx Record Date: 11/30/2006
Xxxxxxxx, XX 00000-0000 Determination Date: 12/06/2006
-----------------------------------------------------------------------------------------------------------------------------------
Modified Loan Detail
-----------------------------------------------------------------------------------------------------------------------------------
Offering
Loan Document Pre-Modification Post-Modification Pre-Modification Post-Modification Modification
Number Cross-Reference Balance Balance Interest Rate Interest Rate Date
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Totals
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Loan Modification
Number Description
------------------------
------------------------
Totals
------------------------
------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 25 of 31
--------- ----------------------------------------------
|[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 2006-6 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 12/11/2006
0000 Xxx Xxxxxxxxx Xxxx Record Date: 11/30/2006
Xxxxxxxx, XX 00000-0000 Determination Date: 12/06/2006
-----------------------------------------------------------------------------------------------------------------------------------
Historical Liquidated Loan Detail
------------------------------------------------------------------------------------------------------------------------
Beginning Fees, Most Recent Gross Sales Net Proceeds
Distribution Scheduled Advances, Appraised Proceeds or Received on
Date ODCR Balance and Expenses* Value or BPO Other Proceeds Liquidation
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
Current Total
------------------------------------------------------------------------------------------------------------------------
Cumulative Total
------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
Net Proceeds Date of Current Current Period Cumulative Loss to Loan
Distribution Available for Realized Period Adj. Adjustment Adjustment with Cum
Date Distribution Loss to Trust to Trust to Trust to Trust Adj. to Trust
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
Current Total
---------------------------------------------------------------------------------------------------------------------------------
Cumulative Total
---------------------------------------------------------------------------------------------------------------------------------
* Fees, Advances and Expenses also include outstanding P & I advances and unpaid fees (servicing, trustee, etc.).
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 26 of 31
--------- ----------------------------------------------
|[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 2006-6 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 12/11/2006
0000 Xxx Xxxxxxxxx Xxxx Record Date: 11/30/2006
Xxxxxxxx, XX 00000-0000 Determination Date: 12/06/2006
-----------------------------------------------------------------------------------------------------------------------------------
Historical Bond/Collateral Reallized Loss Reconciliation Detail
Offering Beginning Aggregate Prior Realized Amounts Interest Modification
Distribution Document Balance Realized Loss Loss Applied Covered By (Shortages)/ /Appraisal
Date Cross-Reference at Liquidation on Loans to Certificates Credit Support Excesses Reduction Adj.
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Totals
------------------------------------------------------------------------------------------------------------------------------------
Additional Realized Loss Recoveries of (Recoveries)/
Distribution (Recoveries) Applied to Realized Losses Losses Applied to
Date /Expenses Certificates to Date Paid as Cash Certificate Interest
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
Totals
-------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 27 of 31
--------- ----------------------------------------------
|[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 2006-6 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 12/11/2006
0000 Xxx Xxxxxxxxx Xxxx Record Date: 11/30/2006
Xxxxxxxx, XX 00000-0000 Determination Date: 12/06/2006
-----------------------------------------------------------------------------------------------------------------------------------
Interest Shortfall Reconciliation Detail - Part 1
Offering Stated Principal Current Ending Special Servicing Fees Non-Recoverable
Document Balance at Scheduled -------------------------------- (Scheduled
Cross-Reference Contribution Balance Monthly Liquidation Work Out ASER (PPIS) Excess Interest)
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
Totals
----------------------------------------------------------------------------------------------------------------------------------
Offering Modified Interest Additional
Document Interest on Rate (Reduction) Trust Fund
Cross-Reference Advances /Excess Expense
--------------------------------------------------------------
--------------------------------------------------------------
Totals
--------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 28 of 31
--------- ----------------------------------------------
|[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 2006-6 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 12/11/2006
0000 Xxx Xxxxxxxxx Xxxx Record Date: 11/30/2006
Xxxxxxxx, XX 00000-0000 Determination Date: 12/06/2006
-----------------------------------------------------------------------------------------------------------------------------------
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 29 of 31
--------- ----------------------------------------------
|[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 2006-6 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 12/11/2006
0000 Xxx Xxxxxxxxx Xxxx Record Date: 11/30/2006
Xxxxxxxx, XX 00000-0000 Determination Date: 12/06/2006
-----------------------------------------------------------------------------------------------------------------------------------
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 30 of 31
--------- ----------------------------------------------
|[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 2006-6 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 12/11/2006
0000 Xxx Xxxxxxxxx Xxxx Record Date: 11/30/2006
Xxxxxxxx, XX 00000-0000 Determination Date: 12/06/2006
-----------------------------------------------------------------------------------------------------------------------------------
Supplemental Reporting
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 31 of 31
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 2006-6
Re: Pooling and Servicing Agreement dated as of November 1, 2006 (the
"Agreement") by and among Banc of America Commercial Mortgage Inc.,
as Depositor, Bank of America, National Association, as Master
Servicer, CWCapital Asset Management LLC, as Special Servicer, and
Xxxxx Fargo Bank, N.A., as Trustee and REMIC Administrator, for the
Certificateholders of Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2006-6
---------------------------
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 2006-6
----------------------------------------
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 November 1, 2006, by and among Banc of America
Commercial Mortgage Inc., as depositor, Bank of America, National Association,
as Master Servicer, CWCapital Asset Management LLC, 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 November 1, 2006 (the "Pooling and Servicing
Agreement"), among the Master Servicer, CWCapital Asset Management LLC,
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 2006-6
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 $35,000,000
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 2006-6 (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 November
1, 2006 among Banc of America Commercial Mortgage Inc., as Depositor,
Bank of America, National Association, as Master Servicer, CWCapital
Asset Management LLC, 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 2006-6 (the "Trust"),
Commercial Mortgage Pass-Through Certificates, Series 2006-6
------------------------------------------------------------
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 November
1, 2006, among Banc of America Commercial Mortgage Inc., as Depositor, Bank of
America, National Association, as Master Servicer, CWCapital Asset Management
LLC, 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 2006-6
Re: Information Regarding Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2006-6
------------------------------------------------------------
Re: Ladies and Gentlemen:
---------------------
In connection with the Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2006-6 (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 November 1, 2006, by and among the Depositor, the Trustee, Bank of
America, National Association, as Servicer (the "Servicer") and CWCapital Asset
Management LLC, 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 2006-6
Re: Transfer of Banc of America Commercial Mortgage Inc., Commercial
Mortgage Pass-Through Certificates, Series 2006-6, Class [__ ]
----------------------------------------------------------------
Ladies and Gentlemen:
Reference is made to the Pooling and Servicing Agreement, dated
as of November 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"),
CWCapital Asset Management LLC, 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 Name of Transferor]
By:_____________________________
Name:
Title:
Dated: _________ __, __
------------------------
* Insert one of these two provisions, which come from the definition of
"offshore transaction" in Regulation S.
EXHIBIT O
FORM OF TRANSFER CERTIFICATE
FOR EXCHANGE OR TRANSFER FROM
DOMESTIC GLOBAL CERTIFICATE TO REGULATION S
GLOBAL CERTIFICATE 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 2006-6
Re: Transfer of Banc of America Commercial Mortgage Inc., Commercial
Mortgage Pass-Through Certificates, Series 2006-6, Class [__]
-------------------------------------------------------------
Reference is hereby made to the Pooling and Servicing Agreement,
dated as of November 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"), CWCapital Asset Management LLC, 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: _____________, ___
--------------------------
** 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 2006-6
Re: Transfer of Banc of America Commercial Mortgage Inc., Commercial
Mortgage Pass-Through Certificates, Series 2006-6, Class [__ ]
Reference is hereby made to the Pooling and Servicing Agreement,
dated as of November 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"), CWCapital Asset Management LLC, 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 2006-6
Re: Transfer of Banc of America Commercial Mortgage Inc., Commercial
Mortgage Pass-Through Certificates, Series 2006-6, Class [__ ]
--------------------------------------------------------------
Reference is hereby made to the Pooling and Servicing Agreement,
dated as of November 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"), CWCapital Asset Management LLC, 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 and Bear, Xxxxxxx & Co.
Inc., the Initial Purchasers of the offering of the Certificates.
[Insert Name of Transferor]
By:_____________________________
Name:
Title:
Dated:______ __, ____
SCHEDULE I
Mortgage Loan Schedule
Sequence Loan Number Loan Seller Property Name
-------- ----------- --------------- -----------------------------------------------------------
1 0000000 Bank of America Xxxxxxxxxx Xxxxxxxx
0 00000 Xxxx xx Xxxxxxx 000 Xxxxx
0 0000000 Xxxx xx Xxxxxxx The Empire Mall
4 0000000 Bank of America LNR Warner Center I, II, & III
5 45829 BSCMI Chicago Loop Portfolio (Rollup)
5.1 45829-1 BSCMI One North Dearborn
5.2 45829-2 BSCMI One North LaSalle
5.3 45829-3 BSCMI 000 Xxxxx Xxxxxxxx Xxxxxx
6 0000000 Bank of America EZ Storage Portfolio (Rollup)
6.1 0000000 Bank of America EZ Storage Portfolio - Boston, MA (Brighton)
6.2 0000000 Bank of America EZ Storage Portfolio - Minneapolis, MN (3601 Hiawatha)
6.3 0000000 Bank of America EZ Storage Portfolio - Ferndale, MI
6.4 0000000 Bank of America EZ Storage Portfolio - Southfield, MI
6.5 0000000 Bank of America EZ Storage Portfolio - Lynnfield, MA
6.6 0000000 Bank of America EZ Storage Portfolio - Eastpointe, MI
6.7 0000000 Bank of America EZ Storage Portfolio - Warren, MI
6.8 0000000 Bank of America EZ Storage Portfolio - St. Louis Park, MN
6.9 0000000 Bank of America EZ Storage Portfolio - Redford, MI
6.10 0000000 Bank of America EZ Storage Portfolio - Troy, MI
6.11 0000000 Bank of America EZ Storage Portfolio - Peabody, MA
6.12 0000000 Bank of America EZ Storage Portfolio - Tewksbury, MA
6.13 0000000 Bank of America EZ Storage Portfolio - Billerica, MA
6.14 0000000 Bank of America EZ Storage Portfolio - South Euclid, OH
6.15 0000000 Bank of America EZ Storage Portfolio - Rochester Hills, MI
6.16 0000000 Bank of America EZ Storage Portfolio - Roseville II, MI (Xxxxxxxxx Drive)
6.17 0000000 Bank of America EZ Storage Portfolio - Warwick, RI
6.18 0000000 Bank of America EZ Storage Portfolio - Roseville I, MI (East Twelve Mile)
6.19 0000000 Bank of America EZ Storage Portfolio - Bloomfield Hills, MI
6.20 0000000 Bank of America EZ Storage Portfolio - Grand River, MI
6.21 0000000 Bank of America EZ Storage Portfolio - Shrewsbury, MA
6.22 0000000 Bank of America EZ Storage Portfolio - Chelmsford, MA
6.23 0000000 Bank of America EZ Storage Portfolio - Hingham, MA
6.24 0000000 Bank of America EZ Storage Portfolio - Auburn Hills, MI
6.25 0000000 Bank of America EZ Storage Portfolio - Dearborn Heights, MI
6.26 0000000 Bank of America EZ Storage Portfolio - Livonia, MI
6.27 0000000 Bank of America EZ Storage Portfolio - Lincoln Park, MI
6.28 0000000 Bank of America EZ Storage Portfolio - Minneapolis, MN (4325 Hiawatha)
6.29 0000000 Bank of America EZ Storage Portfolio - Clinton Township (Hall Road), MI
6.30 0000000 Bank of America EZ Storage Portfolio - Reading, OH
6.31 0000000 Bank of America EZ Storage Portfolio - Center Line, MI
6.32 0000000 Bank of America EZ Storage Portfolio - Dearborn, MI
6.33 0000000 Bank of America EZ Storage Portfolio - Clinton Township (Garfield), MI
6.34 0000000 Bank of America EZ Storage Portfolio - Clinton Township (Romeo Plank), MI
6.35 0000000 Bank of America EZ Storage Portfolio - Cleveland Heights, OH
6.36 0000000 Bank of America EZ Storage Portfolio - Taylor, MI
6.37 0000000 Bank of America EZ Storage Portfolio - Woodbury, MN
6.38 0000000 Bank of America EZ Storage Portfolio - Cincinnati, OH (Madison Road)
6.39 0000000 Bank of America EZ Storage Portfolio - Eagan, MN
6.40 0000000 Bank of America EZ Storage Portfolio - New Brighton, MN
6.41 0000000 Bank of America EZ Storage Portfolio - Clinton Township (Xxxxxxxxx Hwy), MI
6.42 0000000 Bank of America EZ Storage Portfolio - North Bend, OH
6.43 0000000 Bank of America EZ Storage Portfolio - Farmington Hills, MI
6.44 0000000 Bank of America EZ Storage Portfolio - Sterling Heights, MI
6.45 0000000 Bank of America EZ Storage Portfolio - Xxxxx Xxxx, TX
6.46 0000000 Bank of America EZ Storage Portfolio - Burnsville, MN
6.47 0000000 Bank of America EZ Storage Portfolio - Coon Rapids, MN
6.48 0000000 Bank of America EZ Storage Portfolio - Xxxxxxx Heights, MN
7 47556 BSCMI Xxxxxx Center
8 0000000 Bank of America Impac Center
9 47225 BSCMI Crowne Plaza & Fairfield Inn Valley Forge
10 0000000 Bank of America 0000 Xxxxxxxxx Xxxxxx Xxxxxx
11 0000000 Bank of America Riverstone at Xxxxxx Xxxxx
12 0000000 Bank of America 0000 Xxxxxxxxx Xxxxxx
13 0000000 Bank of America Registry at Windsor Park
14 0000000 Bank of America Central Park Corporate Center
15 0000000 Bank of America St. Xxxxxxx Apartments
16 47888 BSCMI University Courtyard Apartments
17 0000000 Bank of America Xxxxx Marketplace
18 0000000 Bank of America Merced Marketplace
19 0000000 Bank of America The Village at Wildcreek Apartments
20 0000000 Bank of America Ocean Park Apartments
Total Crossed Loans
21 0000000 Bank of America Brookside Manors
22 0000000 Bank of America Courtyard Apartments
23 0000000 Bank of America Sunrise Marketplace
24 0000000 Bank of America Townview Station Apartments
25 19449 Bank of America Marketplace College Ave.
26 0000000 Bank of America University Commons - East Lansing
27 47229 BSCMI La Quinta Mission Valley
28 0000000 Bank of America University Commons - Columbia
29 0000000 Bank of America University Commons - Oxford
30 0000000 Bank of America University Commons - Tuscaloosa
31 0000000 Bank of America University Commons - Baton Rouge
32 0000000 Bank of America Enclave at Mary's Creek Apartments
33 0000000 Bank of America Cambridge Office Portfolio (Rollup)
33.1 0000000 Bank of America Cambridge Office Portfolio - 000 Xxxxxxx Xxxxx Xxxxxxx
33.2 0000000 Bank of America Cambridge Office Portfolio - 000 Xxxxxxx Xxxxx Xxxxxxx
33.3 0000000 Bank of America Cambridge Office Portfolio - 000 Xxxxxxx Xxxxxx
34 0000000 Bank of America University Commons - Athens
35 0000000 Bank of America Cal Mira Mesa
36 0000000 Bank of America Bella Sonoma Apartments
37 0000000 Bank of America Castle Pines Marketplace
38 47543 BSCMI Xxxxxxxx Xxxxx Xxxxxxxx Xxxxxx
00 00000 Xxxx of America JCC-One
40 0000000 Bank of America Morningside Courts Apartments
41 47233 BSCMI Holiday Inn Express BWI
42 47805 BSCMI Kettering Towne Center
43 0000000 Bank of America Canton Center at Cherry Hill
44 18259 Bank of America Forum Shopping Center
45 19668 Bank of America Blossom Village
46 0000000 Bank of America Arapahoe Ridge
47 20002 Bank of America Xxxxxx Xxxxxxx Properties (Rollup)
47.1 20002 Bank of America Xxxxxx Xxxxxxx-0000 Xxxxxx Xx
47.2 20002 Bank of America Xxxxxx Xxxxxxx-Capitol Way
47.3 20002 Bank of America Xxxxxx Xxxxxxx-04 Heritage Ct
47.4 20002 Bank of America Xxxxxx Xxxxxxx-24 Heritage Ct
47.5 20002 Bank of America Xxxxxx Xxxxxxx-0000 Xxxxxx Xx
48 0000000 Xxxx xx Xxxxxxx Xxxxxxxx Xxxxx
00 00000 Bank of America Wyoga Towers
50 0000000 Bank of America Big Y - South Xxxxxx
51 19446 Bank of America Courtyard Marriott - Richland
52 0000000 Bank of America University Commons - Starkville
53 0000000 Bank of America Drake Crossings Retail Center
54 0000000 Bank of America First Park Ten
55 20216 Bank of America Kensington Park - Retail
56 0000000 Bank of America Kohl's-Lutz, FL
57 46856 BSCMI 000 Xxxx Xxxxxxxx
58 0000000 Bank of America Xxxxx Marketplace Pads
59 0000000 Bank of America Holiday Inn Express North
60 13048 Bank of America Point of the Southwest
61 18408 Bank of America Warm Springs & Eastern Retail Center
62 19318 Bank of America MarQueen Hotel
63 0000000 Bank of America Xxxxxx - Xxxxxx Park
64 18967 Bank of America Park Plaza Self Storage Portfolio (Rollup)
64.1 18967 Bank of America Twin City Storage
64.2 18967 Bank of America Saddle Creek Storage
64.3 00000 Xxxx xx Xxxxxxx Xxxxxxx Storage
64.4 18967 Bank of America I-29 Storage
65 0000000 Bank of America Tire Centers - Statesville, NC
66 0000000 Bank of America Alamo Rent-A-Car Newport
67 19135 Bank of America Comfort Suites-Southpark
68 47588 BSCMI Walgreens Easton
69 0000000 Bank of America Xxxxx Xxxxxx - Xxxxxx Xxxxx
00 00000 BSCMI Xxxxx Xxxxx Xxxxx
00 00000 XXXXX Xxxxxxxxx - Decatur
72 18587 Bank of America Xxxxxx Plaza Retail
73 0000000 Bank of America Hillside Plaza
74 0000000 Bank of America Media Xxxxxx - Xxxx Plaza
75 0000000 Bank of America Holiday Inn Express West
76 48075 BSCMI Holiday Inn Mammoth
77 0000000 Bank of America 0000 Xxxxxx Xxxxxx
78 42633 BSCMI Xxxx Xxxxxx Xxxxxxxx
00 00000 XXXXX 000 Xxxx Xxxxxx
80 47841 BSCMI Ramada Inn
81 0000000 Bank of America Walgreen's at Xxxxxx
82 19391 Bank of America Xxxxxxx Xxxx Apartments
83 0000000 Bank of America 0000 Xxxxx Xxxxx
84 18031 Bank of America North Star Home Center
85 0000000 Bank of America Tallahassee Storage
86 18887 Bank of America Hampton Inn-Wilson
87 19656 Bank of America Suburban Extended Stay-Austin
88 0000000 Bank of America Gallery I
89 0000000 Bank of America Park Xxxxxxx Drive Self Storage
90 19553 Bank of America All American Storage-Pepperbush
91 46882 BSCMI Boulder Holiday Inn Express
92 0000000 Bank of America 000 XxXxxx
00 00000 XXXXX Showtime Cinemas
94 59766 Bank of America Makena Newport Retail Center
95 18138 Bank of America Keymac Building
96 12328 Bank of America Country Inn - Savannah
97 0000000 Bank of America Xxxxxx - Xxxxxxxx
98 19360 Bank of America Xxxxxxx Xxxxxxxx Portfolio (Rollup)
98.1 19360 Bank of America Xxxxxxx Xxxxxxxx-Columbus
98.2 19360 Bank of America Xxxxxxx Xxxxxxxx-Brownsburg
98.3 19360 Bank of America Xxxxxxx Xxxxxxxx-Mooresville
98.4 19360 Bank of America Xxxxxxx Xxxxxxxx-Fishers
99 47606 BSCMI 0000 Xxxxxxxxx Xxxxxx
100 19725 Bank of America The Shoppes of Citrus Terrace
101 47605 BSCMI 0000 Xxxxx Xxxxxxxxx
000 00000 XXXXX 1916 Grand Concourse
103 59652 Bank of America Surprise Retail
104 20285 Bank of America Redwood Road Retail
105 18492 Bank of America Days Inn-Jacksonville
106 19210 Bank of America Xxxxxxxxx Xxxxx Xxxxxxxxxx
000 00000 Xxxx xx Xxxxxxx Xxxxxxxx Properties
108 20608 Bank of America Staples Akron
109 20154 Bank of America Harborview East Apartments
110 19310 Bank of America Xxxxxx Xxxxxxxx
000 00000 Xxxx xx Xxxxxxx Xxxxxx Mini Storage
112 17166 Bank of America Xxxxxx Xxxxx
000 00000 XXXXX 0000 Xxxx Xxxxxx
114 0000000 Bank of America Charleston Center
115 19433 Bank of America Walgreens Anoka
116 19629 Bank of America National Storage Center-HICO Village
117 19443 Bank of America Plaza del Sol
Totals
Sequence Street Address
-------- --------------------------------------------------------------------------------------------
1 3000 Riverchase Galleria
2 000 Xxxxx Xxxxxxxx Xxxxxx
3 0000 Xxxx Xxxxxx Xxxx
4 5700, 0000 Xxxxxx Xxxxxx & 21271, 21281, 00000 Xxxxxxx Xxxxxxxxx
5 Various
5.1 0 Xxxxx Xxxxxxxx Xxxxxx
5.2 0 Xxxxx Xxxxxxx Xxxxxx
5.3 000 Xxxxx Xxxxxxxx Xxxxxx
6 Various
6.1 000 Xxxxx Xxxxxx Xxxxxx
6.2 0000 Xxxxxxxx Xxxxxx
6.3 000 Xxxx Xxxxxxxx Xxxxxx
6.4 00000 Xxxx Xxxx
6.5 000 Xxxxxxxx
6.6 00000 Xxxxx Xxxx Xxxx
6.7 20979 Xxxxxxxxx Highway
6.8 0000 Xxxxx Xxxx Xxxx Xxxxx
6.9 00000 Xxxxxxxxx Xxxx
6.10 0000 Xxxx Xxx Xxxxxx Xxxx
6.11 000 Xxxxxxx Xxxxxx
6.12 000 Xxxx Xxxxxx
6.13 000 Xxxxxxxx Xxxx
6.14 0000 Xxxxxxxxxx Xxxxxxxxx
6.15 0000 Xxxxxx Xxxx
6.16 00000 Xxxxxxxxx Xxxxx
6.17 00 Xxxxxx Xxxx
6.18 00000 Xxxx Xxxxxx Xxxx Xxxx
6.19 0000 Xxxxxxx Xxxxx
6.20 00000 Xxxxx Xxxxx Xxxxx
6.21 000 Xxxxxx Xxxxxxxx
6.22 00 Xxxx Xxxxxx
6.23 000 Xxxxxxxxxx Xxxx Xxxxx
6.24 0000 Xxxxx Xxxx
6.25 00000 Xxx Xxxxx Xxxxx
6.26 00000 Xxxxxxxxxx Xxxx
6.27 0000 Xxxxxx Xxxxxx
6.28 0000 Xxxxxxxx Xxxxxx
6.29 00000 Xxxx Xxxx
6.30 0000 Xxxx Xxxxxxxxx Xxxx
6.31 0000 Xxxx 00 Xxxx Xxxx
6.32 00000 Xxxx Xxxxxx
6.33 00000 Xxxxxxxx Xxxx
6.34 00000 Xxxxx Xxxxx Xxxx
6.35 0000 Xxxxxxxxxxxx Xxxxxx Xxxx
6.36 00000 Xxxxxx Xxxxx
6.37 000 Xxxx Xxxxx
6.38 0000 Xxxxxxx Xxxx
6.39 0000 Xxxxxx Xxxxxxxx Xxxxxxx
6.40 000 0xx Xxxxxx Xxxxxxxxx
6.41 00000 Xxxxxxxxx Xxxxxxx
6.42 000 Xxxxx Xxxx Xxxx
6.43 24500 Xxxxxxxx Court
6.44 0000 Xxxxxxxxxxxx Xxxxxxx
6.45 0000 Xxx Xxxx Xxxxx
6.46 000 Xxxx Xxxxxxxx Xxxx
6.47 0000 Xxxxxxxxxx Xxxxxx Xxxxxxxxx
6.48 0000 Xxxxx Xxxxxxx 61
7 101 & 000 Xxxxx Xxxxxx
8 19500-19550 Jamboree Road
9 258 & 000 Xxxx Xxxxxxxxx
00 0000 Xxxxxxxxx Xxxx
11 0000 Xxxxxxxxxx Xxxxx
12 0000 Xxxxxxxxx Xxxxxx
13 00000 Xxxxxx Xxxx Xxxxx Xxxxx
14 0000 Xxxxx Xxxxxx and 200, 300, 000 Xxxxxxxxxx Xxxxx
15 0000 Xxxxx Xxxxxxxx Xxxxxx
16 3710 Xxxxxxx Xxxxxx
00 0000 Xxxx Xxxxx Xxxx
18 1720, 1726, 1728, 1734, 1742, 1764, 1778, 1786, 1790, 1792, 1794, and 0000 Xxxx Xxxxx Xxxxxx
19 4255 Xxxxxxxx Road
20 0000 Xxxxx Xxxxxxx Xxxxxxxxx
21 0000 Xxxx Xxxxx Xxxxxx
22 0000 Xxxx Xxx Xxxxxx
23 000-000 Xxxxx Xxxxxx Xxxxxxxxx
24 000 Xxxxxxx Xxxx Xxxxxxxxx
25 0000 Xxxx Xxxxxxx Xxxxxx
26 0000 Xxxxxx Xxxx
27 000 Xxxxxx Xxx Xxx Xxxxx
28 000 Xxxxxxxxx Xxxx
29 0000 Xxxxx Xxxx
30 301 Xxxxx Xxxxxx Boulevard
31 0000 Xxxxxxx Xxxxx
32 0000 Xxxxxxxx Xxxxxxx
33 Various
33.1 000 Xxxxxxx Xxxxx Xxxxxxx
33.2 000 Xxxxxxx Xxxxx Xxxxxxx
33.3 000 Xxxxxxx Xxxxxx
34 1000 Xxxxxxxx Xxxxx
00 0000-0000 Xxxxxx Street, 0000-0000 Xxxxxxx Xxxx Xxxxx and 10675-10695 Xxxxxx Xxxxxx
00 0000 00xx Xxxxxx Xxxx
37 558, 560, 562 and 000 Xxxxxx Xxxxx Xxxxxxx
38 7379 Baltimore Xxxxxxxxx Xxxxxxxxx
00 0000 Xxxxxxxxx Xxxxxx Northeast
40 000 Xxxxxxxxx Xxxx
41 0000 Xxxxx Xxxx
42 0000 Xxxx Xxxxxxx Xxxx
43 225 Canton Center Road
00 0000-0000 Xxxxxx Xxxxx Xxxxxx Xxxx
00 0000 Xxxxxxxxx Xxxxx
46 3331, 3333, 0000 Xxxxxxxx Xxxx
47 Various
47.1 0000 Xxxxxx Xxxxxx
47.2 000 Xxxxxxx Xxx
47.3 0000 Xxxxxxxx Xxxxx
47.4 0000 Xxxxxxxx Xxxxx
47.5 0000 Xxxxxx Xxxxxx
48 4525, 4533 and 0000 XxxXxxxxx Xxxxxxxxx
49 0000 Xxxxxxxxx Xxxxx
50 00 Xxxxxxxxxxxx Xxxxxx
51 480 Columbia Point Drive
52 0000 Xxxxxx Xxxx Xxxxx
53 0000-0000 Xxxx Xxxxx Xxxx
54 6660 First Park Ten Boulevard
55 7600, 7630, 0000 Xxxxxxx Xxxxxx Xxxxx
56 0000 Xxx Xxxx Xxxx
57 800 Commerce Road West
58 7131 Xxxx Xxxxx Xxxx
00 0000 Xxxxxxx Xxx
60 11505 Xxxxxxx Xxxxx Xxxx
00 0000 and 0000 Xxxxx Xxxxxxx Xxxxxx
62 000 Xxxxx Xxxx Xxxxxx X
63 000 Xxxxx Xxxxxxx Xxxxxx
64 Various
64.1 0000 Xxxx Xxxx Xxxxx
64.2 0000 Xxxxxxxxx Xxxxxx Xxxxxxx
64.3 0000 Xxxxx 00xx Xxxxxx
64.4 000 Xxxxx 00xx Xxxxxx
65 000-000 Xxxxxxxx Xxxxxxxxx
66 0000 Xxxxx Xxxxxx
67 000 Xxxxx Xxxxxx
00 0000 Xxxxx Xxxxxxx
69 0000 Xxxxx Xxxxxx Xxxxx
70 7630 Xxxxx Xxxxx Xxxxxx
00 0000 XxXxxxx Xxxx
72 000 Xxxx Xxxxxx Xxxxxx
73 725 Broadway
74 0000 Xxxx Xxxxxx
75 0000 Xxxx Xxxxxx Xxxxxx
76 3236 Xxxx Xxxxxx
00 0000 Xxxx Xxxxxx Avenue
78 4100 & 0000 Xxxxx Xxxx Xxxxxx Xxxxx and 5005 & 0000 XxXxxxxx Xxxxx Xxxxxxx
79 000 Xxxx Xxxxxx
80 000 Xxxx Xxxxxx Xxxx
81 0000 Xxxx Xxxxx Xxxxx Xxxxxx
82 3601 NE 000xx Xxxxxx
00 0000 Xxxxx Xxxxx
84 0000-0000 Xxxx Xxxxxxxx Xxxx & 7711-7797 Burnet Road
85 5086 Tennessee Xxxxxxx Xxxxxxxxx
00 0000 Xxxx Xxxx
87 2501 South Interstate 35
88 5712 Cleveland Street
89 0000 Xxxx Xxxx Xxxxxxx Xxxxx
90 0000 Xxxxxxxxxx Xxxxx
00 0000 Xxxxx Xxxxxxxx
92 000 Xxxxx XxXxxx Xxxx
93 1420 Route 300
94 14001 Xxxxxxx Xxxxxx
00 000 Xxxxx Xxxxxx Xxxxxx
96 0000 Xxxxx Xxxxx Xxxx
97 2105 Xxxxxxxx Xxxxx Plaza
98 Various
98.1 0000 Xxxxx Xxxxxxxx Xxxx
98.2 00 Xxxxxx Xxxx
98.3 000 Xxxxxx Xxxxxx
98.4 0000 Xxxxxxx Xxxxxxxx Xxxxx
99 0000 Xxxxxxxxx Xxxxxx
100 00000 X.X. Xxxxxxx 441
101 1791 Grand Concourse
102 1916 Grand Concourse
103 14071 Xxxx Xxxx Xxxx
000 0000 Xxxxx Xxxxxxx Xxxx
105 0000 Xxxxx Xxxx
106 1100 & 0000 Xxxxxxxxx Xxxxx
107 000 XxxxxXxxx Xxxx and 211 and 000 Xxxxxxx Xxxxxx
108 0000 Xxxxx Xxxxxxxxx Xxxx
109 0000 Xxxxxx Xxxxx
110 104 Sleepy Xxxxxx Xxxxx
000 000 Xxxxx Xxxx Xxxx
112 0000 Xxxxxx Xxxx
113 0000 Xxxx Xxxxxx
114 5000 and 0000 Xxxx Xxxxxxxxxx Xxxxxxxxx
115 0000 Xxxxx Xxxxx Xxxxxx
000 00000 Xxxxx Xxxxxx Street
117 1701, 1703, 0000 Xxxx Xxxxx Xxx
Xxxxxxxx Xxxx Xxxxx Zip Code Mortgage Rate (1) Amortization Basis (2) Original Balance Cut-off Date Balance
-------- ----------------- ------- -------- ----------------- ---------------------- ---------------- --------------------
1 Xxxxxx XX 00000 5.648% Actual/360 $305,000,000 $305,000,000
2 Xxx Xxxxxxx XX 00000 5.844% Actual/360 $273,000,000 $273,000,000
3 Xxxxx Xxxxx XX 00000 5.794% Actual/360 $176,300,000 $176,300,000
4 Xxxxxxxx Xxxxx XX 00000 5.628% 30/360 $174,000,000 $174,000,000
5 Chicago IL Various 5.860% Actual/360 $165,000,000 $165,000,000
5.1 Xxxxxxx XX 00000 $85,800,000 $85,800,000
5.2 Xxxxxxx XX 00000 $54,600,000 $54,600,000
5.3 Xxxxxxx XX 00000 $24,600,000 $24,600,000
6 Various Various Various 5.647% Actual/360 $150,000,000 $150,000,000
6.1 Xxxxxxxx XX 00000 $10,212,957 $10,212,957
6.2 Xxxxxxxxxxx XX 00000 $5,243,497 $5,243,497
6.3 Xxxxxxxx XX 00000 $5,075,803 $5,075,803
6.4 Xxxxxxxxxx XX 00000 $4,883,569 $4,883,569
6.5 Xxxxxxxxx XX 00000 $4,867,208 $4,867,208
6.6 Xxxxxxxxxx XX 00000 $4,613,623 $4,613,623
6.7 Xxxxxx XX 00000 $4,450,019 $4,450,019
6.8 Xx. Xxxxx Xxxx XX 00000 $3,587,010 $3,587,010
6.9 Xxxxxxx XX 00000 $3,574,740 $3,574,740
6.10 Xxxx XX 00000 $3,574,740 $3,574,740
6.11 Xxxxxxx XX 00000 $3,558,379 $3,558,379
6.12 Xxxxxxxxx XX 00000 $3,456,127 $3,456,127
6.13 Xxxxx Xxxxxxxxx XX 00000 $3,394,776 $3,394,776
6.14 Xxxxx Xxxxxx XX 00000 $3,394,776 $3,394,776
6.15 Xxxxxxxxx Xxxxx XX 00000 $3,370,235 $3,370,235
6.16 Xxxxxxxxx XX 00000 $3,329,334 $3,329,334
6.17 Xxxxxxx XX 00000 $3,214,812 $3,214,812
6.18 Xxxxxxxxx XX 00000 $3,173,911 $3,173,911
6.19 Xxxxxx Xxxx XX 00000 $3,112,559 $3,112,559
6.20 Xxxxxxxxxx Xxxxx XX 00000 $3,047,118 $3,047,118
6.21 Xxxxxxxxxx XX 00000 $3,014,397 $3,014,397
6.22 Xxxxxxxxxx XX 00000 $2,989,857 $2,989,857
6.23 Xxxxxxx XX 00000 $2,944,866 $2,944,866
6.24 Xxxxxx Xxxxx XX 00000 $2,920,325 $2,920,325
6.25 Xxxxxxxx Xxxxxxx XX 00000 $2,920,325 $2,920,325
6.26 Xxxxxxx XX 00000 $2,912,145 $2,912,145
6.27 Xxxxxxx Xxxx XX 00000 $2,818,073 $2,818,073
6.28 Xxxxxxxxxxx XX 00000 $2,797,622 $2,797,622
6.29 Xxxxxxx Xxxxxxxx XX 00000 $2,629,929 $2,629,929
6.30 Xxxxxxx XX 00000 $2,548,127 $2,548,127
6.31 Xxxxxx Xxxx XX 00000 $2,544,037 $2,544,037
6.32 Xxxxxxxx XX 00000 $2,544,037 $2,544,037
6.33 Xxxxxxx Xxxxxxxx XX 00000 $2,535,856 $2,535,856
6.34 Xxxxxxx Xxxxxxxx XX 00000 $2,511,316 $2,511,316
6.35 Xxxxxxxxx Xxxxxxx XX 00000 $2,494,956 $2,494,956
6.36 Xxxxxx XX 00000 $2,490,865 $2,490,865
6.37 Xxxxxxxx XX 00000 $2,437,694 $2,437,694
6.38 Xxxxxxxxxx XX 00000 $2,380,433 $2,380,433
6.39 Xxxxx XX 00000 $2,286,361 $2,286,361
6.40 Xxx Xxxxxxxx XX 00000 $2,278,181 $2,278,181
6.41 Xxxxxxx Xxxxxxxx XX 00000 $2,135,028 $2,135,028
6.42 Xxxxxxxxxx XX 00000 $2,090,037 $2,090,037
6.43 Xxxxxxxxxx Xxxxx XX 00000 $2,077,766 $2,077,766
6.44 Xxxxxxxx Xxxxxxx XX 00000 $1,901,892 $1,901,892
6.45 Xxxxxxxxxx XX 00000 $1,460,163 $1,460,163
6.46 Xxxxxxxxxx XX 00000 $1,415,172 $1,415,172
6.47 Xxxx Xxxxxx XX 00000 $1,411,081 $1,411,081
6.48 Xxxxxxx Xxxxxxx XX 00000 $1,374,271 $1,374,271
7 Xxx Xxxxxxxxx XX 00000 6.076% Actual/360 $106,000,000 $106,000,000
8 Xxxxxx XX 00000 6.276% Actual/360 $91,100,000 $91,100,000
0 Xxxx xx Xxxxxxx XX 00000 5.845% Actual/360 $41,000,000 $40,964,616
10 Xxxxxxxxx XX 00000 6.093% Actual/360 $39,000,000 $39,000,000
11 Xxxxxx Xxxxx XX 00000 5.711% Actual/360 $36,300,000 $36,300,000
12 Xxx Xxxxxxx XX 00000 5.753% Actual/360 $36,000,000 $36,000,000
13 Xxxxxxxxxxxx XX 00000 5.989% Actual/360 $28,000,000 $28,000,000
14 Xxxxxxxxxx XX 00000 5.750% Actual/360 $26,500,000 $26,500,000
00 Xxxxx Xxx Xxxxx XX 00000 5.938% Actual/360 $26,500,000 $26,500,000
16 Xxxxxxx XX 00000 5.850% Actual/360 $25,800,000 $25,800,000
17 Xxx Xxxxx XX 00000 5.866% Actual/360 $25,500,000 $25,500,000
18 Xxxxxx XX 00000 6.000% Actual/360 $22,000,000 $22,000,000
19 Xxxxxx XX 00000 5.760% Actual/360 $20,200,000 $20,200,000
20 Xxxxxxxxxxxx XX 00000 5.989% Actual/360 $20,000,000 $20,000,000
$19,602,422 $19,602,422
21 Xxxxxxxxxx XX 00000 6.157% Actual/360 $11,402,422 $11,402,422
22 Xxxxxxxx XX 00000 6.156% Actual/360 $8,200,000 $8,200,000
23 Xxx Xxxxx XX 00000 5.883% 30/360 $19,175,000 $19,175,000
24 Xxxxxxx XX 00000 6.441% Actual/360 $19,000,000 $19,000,000
25 Xxxxxxxx XX 00000 6.216% Actual/360 $17,920,000 $17,920,000
00 Xxxx Xxxxxxx XX 00000 5.835% Actual/360 $17,850,000 $17,850,000
27 Xxx Xxxxx XX 00000 6.214% Actual/360 $17,450,000 $17,391,895
28 Xxxxx XX 00000 5.835% Actual/360 $16,200,000 $16,200,000
29 Xxxxxx XX 00000 5.835% Actual/360 $15,600,000 $15,600,000
30 Xxxxxxxxxx XX 00000 5.835% Actual/360 $15,375,000 $15,375,000
31 Xxxxx Xxxxx XX 00000 5.835% Actual/360 $14,887,500 $14,887,500
32 Xxxxxxxx XX 00000 6.094% Actual/360 $14,440,000 $14,440,000
33 Xxxxxxxxx XX 00000 5.854% Actual/360 $14,200,000 $14,200,000
33.1 Xxxxxxxxx XX 00000 $6,634,935 $6,634,935
33.2 Xxxxxxxxx XX 00000 $5,332,751 $5,332,751
33.3 Xxxxxxxxx XX 00000 $2,232,314 $2,232,314
34 Xxxxxx XX 00000 5.835% Actual/360 $14,100,000 $14,100,000
35 Xxx Xxxxx XX 00000 5.771% Actual/360 $13,750,000 $13,750,000
36 Xxxx XX 00000 6.007% Actual/360 $13,500,000 $13,500,000
37 Xxxxxx Xxxx XX 00000 5.880% Actual/360 $13,500,000 $13,500,000
00 Xxxx Xxxxxx XX 00000 5.898% Actual/360 $12,500,000 $12,489,359
39 Xxxxxxxxxxx XX 00000 6.071% Actual/360 $12,200,000 $12,200,000
40 Xxxxxxx XX 00000 6.441% Actual/360 $11,750,000 $11,750,000
41 Xxxxxxx XX 00000 6.150% Actual/360 $11,700,000 $11,679,304
42 Xxxxxxxxx XX 00000 6.137% Actual/360 $11,175,000 $11,175,000
43 Xxxxxx XX 00000 5.761% Actual/360 $10,200,000 $10,191,005
44 Xxxxxx XX 00000 6.383% Actual/360 $9,400,000 $9,400,000
45 Xxxxxxxx Xxxxx XX 00000 6.150% Actual/360 $9,200,000 $9,200,000
46 Xxxx XX 00000 5.800% Actual/360 $9,100,000 $9,100,000
47 Various WA Various 6.000% Actual/360 $9,000,000 $9,000,000
47.1 Xxxxxxxx XX 00000 $2,823,878 $2,823,878
47.2 Xxxxxxx XX 00000 $2,264,430 $2,264,430
47.3 Xxxxxxx XX 00000 $1,620,622 $1,620,622
47.4 Xxxxxxx XX 00000 $1,314,258 $1,314,258
47.5 Xxxxxxxx XX 00000 $976,813 $976,813
48 Xxxxxxx Xxxxx XX 00000 6.046% Actual/360 $8,900,000 $8,900,000
49 Xxxxxxxx Xxxxx XX 00000 6.150% Actual/360 $8,700,000 $8,700,000
00 Xxxxx Xxxxxx XX 00000 5.807% Actual/360 $8,120,000 $8,120,000
51 Xxxxxxxx XX 00000 6.190% Actual/360 $7,700,000 $7,700,000
52 Xxxxxxxxxx XX 00000 5.835% Actual/360 $7,485,763 $7,485,763
53 Xxxx Xxxxxxx XX 00000 6.155% Actual/360 $7,000,000 $7,000,000
54 Xxx Xxxxxxx XX 00000 6.215% Actual/360 $7,000,000 $7,000,000
55 Xxxxxxxxx XX 00000 6.000% Actual/360 $6,900,000 $6,900,000
56 Xxxx XX 00000 5.895% Actual/360 $6,900,000 $6,900,000
57 Xxxxxxx XX 00000 6.304% Actual/360 $6,862,500 $6,840,153
58 Xxx Xxxxx XX 00000 5.866% Actual/360 $6,500,000 $6,500,000
00 Xxxxx Xxx Xxxxx XX 00000 6.250% Actual/360 $6,230,000 $6,225,170
60 Xxxxxxx XX 00000 6.160% Actual/360 $6,200,000 $6,195,075
61 Xxx Xxxxx XX 00000 6.337% Actual/360 $6,200,000 $6,184,746
62 Xxxxxxx XX 00000 6.450% Actual/360 $6,000,000 $5,993,000
00 Xxxxxx Xxxx XX 00000 6.100% Actual/360 $5,968,000 $5,963,183
64 Various Various Various 5.955% Actual/360 $5,800,000 $5,800,000
64.1 Xxxxxxx Xxxxxx XX 00000 $1,851,064 $1,851,064
64.2 Xxxxx XX 00000 $1,623,740 $1,623,740
64.3 Xxxxx XX 00000 $1,260,022 $1,260,022
64.4 Xxxxxxx Xxxxxx XX 00000 $1,065,174 $1,065,174
65 Xxxxxxxxxxx XX 00000 6.133% Actual/360 $5,670,000 $5,659,932
66 Xxxxxxx Xxxxx XX 00000 6.276% Actual/360 $5,600,000 $5,595,689
67 Xxxxxxxx Xxxxxxx XX 00000 5.979% Actual/360 $5,500,000 $5,467,314
68 Xxxxxx XX 00000 5.750% Actual/360 $5,300,000 $5,300,000
69 Xxx Xxxxxxx XX 00000 5.740% Actual/360 $5,275,000 $5,275,000
70 Xxxx Xxxxx XX 00000 6.153% Actual/360 $5,200,000 $5,200,000
71 Xxxxxxx XX 00000 6.115% Actual/360 $5,200,000 $5,200,000
72 Xxxxxxx XX 00000 6.080% Actual/360 $5,120,000 $5,120,000
73 Xxxxxx XX 00000 5.800% Actual/360 $5,000,000 $5,000,000
74 Xxx Xxxxxxx XX 00000 5.740% Actual/360 $5,000,000 $5,000,000
75 Xxx Xxxxx XX 00000 6.317% Actual/360 $4,970,000 $4,966,217
00 Xxxxxxx Xxxxx XX 00000 6.027% Actual/360 $4,800,000 $4,796,050
77 Xxxxxxxxx XX 00000 5.919% Actual/360 $4,550,000 $4,550,000
78 XxXxxxxx XX 00000 5.000% 30/360 $4,520,000 $4,520,000
79 Xxxxxxxxxx XX 00000 6.206% Actual/360 $4,500,000 $4,500,000
80 Xxxxxx XX 00000 6.296% Actual/360 $4,500,000 $4,492,300
81 Xxxxxx XX 00000 5.856% Actual/360 $4,404,655 $4,404,655
82 Xxxxxxxx XX 00000 6.087% Actual/360 $4,200,000 $4,196,598
83 Xxxxxxxxx XX 00000 5.865% Actual/360 $4,150,000 $4,150,000
84 Xxxxxx XX 00000 5.630% Actual/360 $4,000,000 $4,000,000
85 Xxxxxxxxxxx XX 00000 6.053% Actual/360 $4,000,000 $4,000,000
86 Xxxxxx XX 00000 6.250% Actual/360 $4,000,000 $3,996,899
87 Xxxxxx XX 00000 6.550% Actual/360 $4,000,000 $3,993,545
88 Xxxxxxxx Xxxxx XX 00000 5.957% Actual/360 $3,800,000 $3,800,000
89 Xxxxxxxxx XX 00000 5.729% Actual/360 $3,800,000 $3,796,621
90 Xxxxxxxxxxxx XX 00000 6.230% Actual/360 $3,750,000 $3,747,077
91 Xxxxxxx XX 00000 6.683% Actual/360 $3,750,000 $3,740,935
92 Xxx Xxxxxxx XX 00000 6.002% Actual/360 $3,600,000 $3,600,000
93 Xxxxxxxx XX 00000 6.353% Actual/360 $3,425,000 $3,425,000
94 Xxxxxx XX 00000 6.054% Actual/360 $3,375,000 $3,375,000
95 Xxxxxxx XX 00000 6.070% Actual/360 $3,320,000 $3,320,000
96 Xxxxxxxx XX 00000 6.653% Actual/360 $3,332,000 $3,319,237
97 Xxxxxxxx XX 00000 6.100% Actual/360 $3,250,000 $3,247,377
98 Various IN Various 6.113% Actual/360 $3,150,000 $3,150,000
98.1 Xxxxxxxx XX 00000 $830,769 $830,769
98.2 Xxxxxxxxxx XX 00000 $830,769 $830,769
98.3 Xxxxxxxxxxx XX 00000 $796,154 $796,154
98.4 Xxxxxxx XX 00000 $692,308 $692,308
99 Xxxxx XX 00000 5.880% Actual/360 $3,125,000 $3,125,000
000 Xxxxxx XX 00000 6.340% Actual/360 $3,074,000 $3,071,675
000 Xxxxx XX 00000 5.880% Actual/360 $3,050,000 $3,050,000
000 Xxxxx XX 00000 5.880% Actual/360 $3,000,000 $3,000,000
103 Xxxxxxxx XX 00000 5.777% Actual/360 $3,000,000 $2,997,365
104 Xxxxxxxxxxxx XX 00000 6.080% Actual/360 $2,800,000 $2,800,000
105 Xxxxxxxxxxxx XX 00000 6.674% Actual/360 $2,810,000 $2,793,110
000 Xxxxxx XX 00000 6.055% Actual/360 $2,690,000 $2,687,803
107 Xxxxxxxx XX 00000 6.020% Actual/360 $2,640,000 $2,640,000
108 Xxxxx XX 00000 5.967% Actual/360 $2,600,000 $2,597,826
000 Xxx Xxxxxx XX 00000 5.821% Actual/360 $2,575,000 $2,575,000
110 Xxxxxxxxxx XX 00000 6.171% Actual/360 $2,565,000 $2,562,969
111 Xxxxxx XX 00000 6.358% Actual/360 $2,325,000 $2,325,000
112 Xxxxxxxxxxx XX 00000 6.679% Actual/360 $2,280,000 $2,271,918
000 Xxxxx XX 00000 5.880% Actual/360 $1,675,000 $1,675,000
114 Xxx Xxxxx XX 00000 6.212% Actual/360 $1,635,000 $1,632,999
115 Xxxxx XX 00000 6.352% Actual/360 $1,500,000 $1,500,000
116 Xxxxxxx XX 00000 6.450% Actual/360 $1,500,000 $1,498,900
117 Xxxxxxx XX 00000 6.650% Actual/360 $1,250,000 $1,250,000
$2,462,208,204
Sequence Remaining Term To Stated Maturity (months) Stated Maturity Date Due Date Monthly Payment
-------- ------------------------------------------ -------------------- -------- ---------------
1 59 10/1/2011 1st $1,455,471
2 84 11/1/2013 1st $1,347,975
3 115 6/1/2016 1st $863,058
4 119 10/1/2016 1st $816,060
5 112 3/1/2016 1st $974,403
5.1
5.2
5.3
6 121 12/1/2016 1st $715,692
6.1
6.2
6.3
6.4
6.5
6.6
6.7
6.8
6.9
6.10
6.11
6.12
6.13
6.14
6.15
6.16
6.17
6.18
6.19
6.20
6.21
6.22
6.23
6.24
6.25
6.26
6.27
6.28
6.29
6.30
6.31
6.32
6.33
6.34
6.35
6.36
6.37
6.38
6.39
6.40
6.41
6.42
6.43
6.44
6.45
6.46
6.47
6.48
7 56 7/1/2011 1st $544,123
8 121 12/1/2016 1st $562,430
9 119 10/1/2016 1st $241,745
10 59 10/1/2011 1st $200,773
11 119 10/1/2016 1st $175,157
12 58 9/1/2011 1st $174,987
13 83 10/1/2013 1st $141,684
14 57 8/1/2011 1st $128,743
15 119 10/1/2016 1st $157,826
16 120 11/1/2016 1st $152,205
17 120 11/1/2016 1st $150,695
18 119 10/1/2016 1st $131,901
19 71 10/1/2012 1st $118,010
20 83 10/1/2013 1st $101,203
21 117 8/1/2016 1st $69,518
22 117 8/1/2016 1st $49,989
23 119 10/1/2016 1st $94,005
24 58 9/1/2011 1st $103,399
25 120 11/1/2016 1st $109,941
26 120 11/1/2016 1st $88,001
27 116 7/1/2016 1st $107,034
28 120 11/1/2016 1st $79,867
29 120 11/1/2016 1st $76,909
30 120 11/1/2016 1st $75,799
31 120 11/1/2016 1st $73,396
32 118 9/1/2016 1st $87,450
33 120 11/1/2016 1st $83,808
33.1
33.2
33.3
34 120 11/1/2016 1st $69,513
35 119 10/1/2016 1st $80,425
36 118 9/1/2016 1st $81,000
37 118 9/1/2016 1st $79,901
38 119 10/1/2016 1st $74,126
39 120 11/1/2016 1st $73,703
40 58 9/1/2011 1st $63,944
41 118 9/1/2016 1st $71,280
42 120 11/1/2016 1st $67,987
43 119 10/1/2016 1st $59,596
44 87 2/1/2014 1st $58,693
45 118 9/1/2016 1st $56,049
46 120 11/1/2016 1st $44,594
47 120 11/1/2016 1st $53,960
47.1
47.2
47.3
47.4
47.5
48 118 9/1/2016 1st $53,623
49 118 9/1/2016 1st $53,003
50 120 11/1/2016 1st $47,681
51 120 11/1/2016 1st $47,110
52 120 11/1/2016 1st $36,905
53 119 10/1/2016 1st $42,669
54 118 9/1/2016 1st $42,941
55 120 11/1/2016 1st $41,369
56 119 10/1/2016 1st $40,904
57 116 7/1/2016 1st $42,495
58 120 11/1/2016 1st $38,413
59 119 10/1/2016 1st $38,359
60 119 10/1/2016 1st $37,812
61 117 8/1/2016 1st $38,526
62 119 10/1/2016 1st $40,325
63 119 10/1/2016 1st $36,166
64 120 11/1/2016 1st $34,606
64.1
64.2
64.3
64.4
65 121 12/1/2016 1st $34,481
66 119 10/1/2016 1st $34,575
67 119 10/1/2016 1st $61,003
68 120 11/1/2016 1st $33,343
69 119 10/1/2016 1st $25,583
70 119 10/1/2016 1st $31,690
71 119 10/1/2016 1st $26,866
72 119 10/1/2016 1st $30,961
73 60 11/1/2011 1st $29,338
74 119 10/1/2016 1st $24,249
75 119 10/1/2016 1st $30,818
76 119 10/1/2016 1st $28,862
77 119 10/1/2016 1st $27,043
78 55 6/1/2011 1st $18,833
79 119 10/1/2016 1st $27,579
80 118 9/1/2016 1st $27,842
81 120 11/1/2016 1st $26,002
82 119 10/1/2016 1st $25,417
83 120 11/1/2016 1st $24,522
84 120 11/1/2016 1st $23,039
85 119 10/1/2016 1st $24,118
86 119 10/1/2016 1st $24,629
87 58 9/1/2011 1st $25,414
88 120 11/1/2016 1st $22,678
89 119 10/1/2016 1st $22,125
90 119 10/1/2016 1st $23,041
91 118 9/1/2016 1st $25,751
92 119 10/1/2016 1st $21,588
93 57 8/1/2011 1st $22,456
94 119 10/1/2016 1st $20,352
95 120 11/1/2016 1st $20,055
96 118 9/1/2016 1st $25,144
97 119 10/1/2016 1st $19,695
98 120 11/1/2016 1st $22,222
98.1
98.2
98.3
98.4
99 59 10/1/2011 1st $18,496
100 119 10/1/2016 1st $19,107
101 59 10/1/2011 1st $18,052
102 59 10/1/2011 1st $17,756
103 119 10/1/2016 1st $17,559
104 120 11/1/2016 1st $16,932
105 79 6/1/2013 1st $19,280
106 119 10/1/2016 1st $16,223
107 120 11/1/2016 1st $15,862
108 119 10/1/2016 1st $15,533
109 120 11/1/2016 1st $15,143
110 119 10/1/2016 1st $15,662
111 115 6/1/2016 1st $14,479
112 117 8/1/2016 1st $15,651
113 59 10/1/2011 1st $9,914
114 119 10/1/2016 1st $10,747
115 119 10/1/2016 1st $9,990
116 119 10/1/2016 1st $9,432
117 83 10/1/2013 1st $8,025
Sequence Administrative Fee Rate (3) Primary Servicing Fee Rate Master Servicing Fee Rate Ownership Interest
-------- --------------------------- -------------------------- ------------------------- ------------------
1 0.021% 0.010% 0.020% Fee
2 0.021% 0.010% 0.020% Fee
3 0.041% 0.030% 0.040% Fee/Leasehold
4 0.021% 0.010% 0.020% Fee
5 0.031% 0.010% 0.030% Various
5.1 Fee/Leasehold
5.2 Fee
5.3 Fee
6 0.041% 0.030% 0.040% Fee
6.1 Fee
6.2 Fee
6.3 Fee
6.4 Fee
6.5 Fee
6.6 Fee
6.7 Fee
6.8 Fee
6.9 Fee
6.10 Fee
6.11 Fee
6.12 Fee
6.13 Fee
6.14 Fee
6.15 Fee
6.16 Fee
6.17 Fee
6.18 Fee
6.19 Fee
6.20 Fee
6.21 Fee
6.22 Fee
6.23 Fee
6.24 Fee
6.25 Fee
6.26 Fee
6.27 Fee
6.28 Fee
6.29 Fee
6.30 Fee
6.31 Fee
6.32 Fee
6.33 Fee
6.34 Fee
6.35 Fee
6.36 Fee
6.37 Fee
6.38 Fee
6.39 Fee
6.40 Fee
6.41 Fee
6.42 Fee
6.43 Fee
6.44 Fee
6.45 Fee
6.46 Fee
6.47 Fee
6.48 Fee
7 0.031% 0.010% 0.030% Fee
8 0.021% 0.010% 0.020% Fee
9 0.031% 0.010% 0.030% Fee
10 0.041% 0.030% 0.040% Fee
11 0.021% 0.010% 0.020% Fee
12 0.021% 0.010% 0.020% Fee
13 0.041% 0.030% 0.040% Fee
14 0.021% 0.010% 0.020% Fee
15 0.021% 0.010% 0.020% Fee
16 0.031% 0.010% 0.030% Fee
17 0.021% 0.010% 0.020% Fee
18 0.021% 0.010% 0.020% Fee
19 0.021% 0.010% 0.020% Fee
20 0.051% 0.040% 0.050% Fee
21 0.021% 0.010% 0.020% Fee
22 0.021% 0.010% 0.020% Fee
23 0.041% 0.030% 0.040% Fee
24 0.021% 0.010% 0.020% Fee
25 0.031% 0.020% 0.030% Fee
26 0.021% 0.010% 0.020% Fee
27 0.031% 0.010% 0.030% Fee
28 0.021% 0.010% 0.020% Fee
29 0.021% 0.010% 0.020% Fee
30 0.021% 0.010% 0.020% Fee
31 0.021% 0.010% 0.020% Fee
32 0.061% 0.050% 0.060% Fee
33 0.021% 0.010% 0.020% Fee
33.1 Fee
33.2 Fee
33.3 Fee
34 0.021% 0.010% 0.020% Fee
35 0.021% 0.010% 0.020% Fee
36 0.021% 0.010% 0.020% Fee
37 0.021% 0.010% 0.020% Fee
38 0.031% 0.010% 0.030% Leasehold
39 0.031% 0.020% 0.030% Fee
40 0.021% 0.010% 0.020% Fee
41 0.031% 0.010% 0.030% Fee
42 0.031% 0.010% 0.030% Fee
43 0.021% 0.010% 0.020% Fee
44 0.031% 0.020% 0.030% Fee
45 0.041% 0.030% 0.040% Fee
46 0.021% 0.010% 0.020% Fee
47 0.031% 0.020% 0.030% Fee
47.1 Fee
47.2 Fee
47.3 Fee
47.4 Fee
47.5 Fee
48 0.021% 0.010% 0.020% Fee
49 0.041% 0.030% 0.040% Fee
50 0.021% 0.010% 0.020% Fee
51 0.031% 0.020% 0.030% Leasehold
52 0.021% 0.010% 0.020% Fee
53 0.021% 0.010% 0.020% Fee
54 0.071% 0.060% 0.070% Fee
55 0.041% 0.030% 0.040% Fee
56 0.021% 0.010% 0.020% Fee
57 0.031% 0.010% 0.030% Fee
58 0.021% 0.010% 0.020% Fee
59 0.021% 0.010% 0.020% Fee
60 0.031% 0.020% 0.030% Fee
61 0.031% 0.020% 0.030% Fee
62 0.031% 0.020% 0.030% Fee
63 0.021% 0.010% 0.020% Fee
64 0.061% 0.050% 0.060% Fee
64.1 Fee
64.2 Fee
64.3 Fee
64.4 Fee
65 0.021% 0.010% 0.020% Fee
66 0.021% 0.010% 0.020% Fee
67 0.072% 0.061% 0.071% Fee
68 0.031% 0.010% 0.030% Fee
69 0.021% 0.010% 0.020% Fee
70 0.071% 0.050% 0.070% Fee
71 0.031% 0.010% 0.030% Fee
72 0.031% 0.020% 0.030% Fee
73 0.021% 0.010% 0.020% Fee
74 0.021% 0.010% 0.020% Fee
75 0.021% 0.010% 0.020% Fee
76 0.031% 0.010% 0.030% Fee
77 0.021% 0.010% 0.020% Fee
78 0.031% 0.010% 0.030% Fee
79 0.031% 0.010% 0.030% Fee
80 0.081% 0.060% 0.080% Fee
81 0.021% 0.010% 0.020% Fee
82 0.031% 0.020% 0.030% Fee
83 0.021% 0.010% 0.020% Fee
84 0.031% 0.020% 0.030% Fee
85 0.021% 0.010% 0.020% Fee
86 0.091% 0.080% 0.090% Fee
87 0.071% 0.060% 0.070% Fee
88 0.021% 0.010% 0.020% Fee
89 0.021% 0.010% 0.020% Fee
90 0.091% 0.080% 0.090% Fee
91 0.031% 0.010% 0.030% Fee
92 0.021% 0.010% 0.020% Fee
93 0.031% 0.010% 0.030% Fee
94 0.021% 0.010% 0.020% Fee
95 0.031% 0.020% 0.030% Fee
96 0.091% 0.080% 0.090% Fee
97 0.021% 0.010% 0.020% Fee
98 0.031% 0.020% 0.030% Fee
98.1 Fee
98.2 Fee
98.3 Fee
98.4 Fee
99 0.031% 0.010% 0.030% Fee
100 0.031% 0.020% 0.030% Fee
101 0.031% 0.010% 0.030% Fee
102 0.031% 0.010% 0.030% Fee
103 0.021% 0.010% 0.020% Fee
104 0.031% 0.020% 0.030% Fee
105 0.091% 0.080% 0.090% Fee
106 0.031% 0.020% 0.030% Fee
107 0.031% 0.020% 0.030% Fee
108 0.031% 0.020% 0.030% Fee
109 0.031% 0.020% 0.030% Fee
110 0.031% 0.020% 0.030% Fee
111 0.031% 0.020% 0.030% Fee
112 0.031% 0.020% 0.030% Fee
113 0.031% 0.010% 0.030% Fee
114 0.021% 0.010% 0.020% Fee
115 0.031% 0.020% 0.030% Fee
116 0.031% 0.020% 0.030% Fee
117 0.031% 0.020% 0.030% Fee
Sequence Cross-Collateralized Loans Original Amortization (months) ARD Loan Grace Period Loan Grou
-------- -------------------------- ------------------------------ -------- ------------ ---------
1 No 0 Yes 10 1
2 No 0 Xx 0 0
0 Xx 0 Xx 0 0
0 Xx 0 Xx 0 0
0 Xx 000 Xx 0 1
5.1 1
5.2 1
5.3 1
6 No 0 No 5 1
6.1 1
6.2 1
6.3 1
6.4 1
6.5 1
6.6 1
6.7 1
6.8 1
6.9 1
6.10 1
6.11 1
6.12 1
6.13 1
6.14 1
6.15 1
6.16 1
6.17 1
6.18 1
6.19 1
6.20 1
6.21 1
6.22 1
6.23 1
6.24 1
6.25 1
6.26 1
6.27 1
6.28 1
6.29 1
6.30 1
6.31 1
6.32 1
6.33 1
6.34 1
6.35 1
6.36 1
6.37 1
6.38 1
6.39 1
6.40 1
6.41 1
6.42 1
6.43 1
6.44 1
6.45 1
6.46 1
6.47 1
6.48 1
7 No 0 No 0 1
8 No 360 Xx 0 0
0 Xx 000 Xx 0 0
00 Xx 0 Xx 0 0
00 Xx 0 Xx 0 0
00 Xx 0 Xx 0 0
00 Xx 0 Xx 0 0
00 Xx 0 Xx 0 0
00 Xx 000 Xx 5 2
16 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 0 No 5 2
21 Yes - BACM 06-6 A 360 No 5 2
22 Yes - BACM 06-6 A 360 Xx 0 0
00 Xx 0 Xx 00 0
00 Xx 0 Xx 0 0
00 Xx 000 Xx 5 1
26 No 0 No 5 2
27 No 360 Xx 0 0
00 Xx 0 Xx 0 0
00 Xx 0 Xx 0 0
00 Xx 0 Xx 0 0
00 Xx 0 No 5 2
32 No 360 Xx 0 0
00 Xx 000 Xx 5 1
33.1 1
33.2 1
33.3 1
34 No 0 Xx 0 0
00 Xx 000 Xx 5 1
36 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 0 Xx 0 0
00 Xx 000 Xx 5 1
42 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 0 Xx 0 0
00 Xx 000 Xx 5 1
47.1 1
47.2 1
47.3 1
47.4 1
47.5 1
48 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 0 Xx 0 0
00 Xx 000 Xx 5 1
54 No 360 No 5 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 No 5 1
60 No 360 Xx 0 0
00 Xx 000 Xx 0 0
00 Xx 300 No 5 1
63 No 360 Xx 0 0
00 Xx 000 Xx 5 1
64.1 1
64.2 1
64.3 1
64.4 1
65 No 360 Xx 0 0
00 Xx 000 Xx 0 0
00 Xx 120 Xx 0 0
00 Xx 000 Xx 0 0
00 Xx 0 Xx 0 0
00 Xx 000 Xx 5 1
71 No 0 Yes 5 1
72 No 360 Xx 0 0
00 Xx 000 Xx 0 0
00 Xx 0 Xx 0 0
00 Xx 000 Xx 5 1
76 No 360 Xx 0 0
00 Xx 000 Xx 0 0
00 Xx 0 Xx 0 0
00 Xx 000 Xx 5 1
80 No 360 No 5 1
81 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
86 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
91 No 300 Xx 0 0
00 Xx 000 Xx 0 0
00 Xx 312 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 5 1
98.1 1
98.2 1
98.3 1
98.4 1
99 No 360 No 5 2
100 No 360 Xx 0 0
000 Xx 000 Xx 0 0
000 Xx 360 No 5 2
103 No 360 Xx 0 0
000 Xx 000 Xx 0 0
000 Xx 300 Xx 0 0
000 Xx 000 Xx 0 0
000 Xx 360 No 5 2
108 No 360 Xx 0 0
000 Xx 000 Xx 0 0
000 Xx 360 Xx 0 0
000 Xx 000 Xx 0 0
000 Xx 300 No 5 1
113 No 360 Xx 0 0
000 Xx 000 Xx 0 0
000 Xx 300 Xx 0 0
000 Xx 000 Xx 5 1
117 No 360 No 5 1
1) Rates are to full precision in the "BACM2006_6.xls" file located on the
computer diskette attached to the Prospectus Supplement.
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 November 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 November 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 November 1, 2006 by and
among BANK OF AMERICA, NATIONAL ASSOCIATION, as Master Servicer, and CAPSTONE
REALTY ADVISORS, LLC, LAUREATE CAPITAL LLC, CBRE MELODY OF TEXAS, LP, COLLATERAL
REAL ESTATE CAPITAL, LLC and FINANCIAL FEDERAL SAVINGS BANK, as Sub-Servicers.
SCHEDULE III
Schedule of Exceptions under Section 2.02(a)
Collateral ID Property Name Pool ID Collgroup Investor ID Alternate Loan ID Loan Amount DocType Exception
------------- -------------------- ------- ---------- ----------- ----------------- ----------- ------- ---------
7420066 University Courtyard 20066 BOAC110906 BSCMI 47888 25,800,000 ALNV 01
Apartments
Collateral ID Exception Description Notation COMMENTS
------------- --------------------- ------------- -----------------------------------------
7420066 MISSING BSCM TO XXXXX ALLONGE IS BEING SENT OVERNIGHT FOR EARLY
A.M. DELIVERY
SCHEDULE IV
Class XP Reference Rates
Interest Class XP Interest Class XP
Accrual Distribution Reference Accrual Distribution Reference
Period Date Rate(1) Period Date Rate(1)
-------- ------------ --------- -------- ------------ ---------
1 12/10/2006 5.816000% 43 06/10/2010 5.993700%
2 01/10/2007 5.807000% 44 07/10/2010 5.814000%
3 02/10/2007 5.807000% 45 08/10/2010 5.993600%
4 03/10/2007 5.807000% 46 09/10/2010 5.993500%
5 04/10/2007 5.985600% 47 10/10/2010 5.813800%
6 05/10/2007 5.806900% 48 11/10/2010 5.993400%
7 06/10/2007 5.985500% 49 12/10/2010 5.813700%
8 07/10/2007 5.806800% 50 01/10/2011 5.813600%
9 08/10/2007 5.985400% 51 02/10/2011 5.813600%
10 09/10/2007 5.985400% 52 03/10/2011 5.813700%
11 10/10/2007 5.806600% 53 04/10/2011 5.993000%
12 11/10/2007 5.985300% 54 05/10/2011 5.813400%
13 12/10/2007 5.806600% 55 06/10/2011 5.992800%
14 01/10/2008 5.985200% 56 07/10/2011 5.814900%
15 02/10/2008 5.806500% 57 08/10/2011 5.984500%
16 03/10/2008 5.806500% 58 09/10/2011 5.984800%
17 04/10/2008 5.985000% 59 10/10/2011 5.798500%
18 05/10/2008 5.806300% 60 11/10/2011 6.002400%
19 06/10/2008 5.984900% 61 12/10/2011 5.826800%
20 07/10/2008 5.807900% 62 01/10/2012 6.002400%
21 08/10/2008 5.986800% 63 02/10/2012 5.826700%
22 09/10/2008 5.986800% 64 03/10/2012 5.826700%
23 10/10/2008 5.807800% 65 04/10/2012 6.002100%
24 11/10/2008 5.986500% 66 05/10/2012 5.826400%
25 12/10/2008 5.807500% 67 06/10/2012 6.001900%
26 01/10/2009 5.815000% 68 07/10/2012 5.826300%
27 02/10/2009 5.814900% 69 08/10/2012 6.001700%
28 03/10/2009 5.815000% 70 09/10/2012 6.001600%
29 04/10/2009 5.994600% 71 10/10/2012 5.826000%
30 05/10/2009 5.814800% 72 11/10/2012 6.002500%
31 06/10/2009 5.994500% 73 12/10/2012 5.827100%
32 07/10/2009 5.814700% 74 01/10/2013 5.827000%
33 08/10/2009 5.994300% 75 02/10/2013 5.826900%
34 09/10/2009 5.994300% 76 03/10/2013 5.827200%
35 10/10/2009 5.814600% 77 04/10/2013 6.001900%
36 11/10/2009 5.994200% 78 05/10/2013 5.826200%
37 12/10/2009 5.814400% 79 06/10/2013 6.001200%
38 01/10/2010 5.814400% 80 07/10/2013 5.825500%
39 02/10/2010 5.814300% 81 08/10/2013 5.999900%
40 03/10/2010 5.814500% 82 09/10/2013 5.999800%
41 04/10/2010 5.993800% 83 10/10/2013 5.825200%
42 05/10/2010 5.814100% 84 11/10/2013 5.996600%
----------
(1) Amounts may vary from actual amounts due to rounding.
SCHEDULE V
LoanNumber PropertyName LoanTransaction Cutoff Balance Amortization Type IOPeriod
---------- ----------------------------------- --------------- -------------- ----------------------- -----------
3403433 Riverchase Galleria BACM 2006-6 305,000,000 Interest Only, Hyper Am 60
58850 777 Tower BACM 2006-6 273,000,000 Interest Only 84
3219700 The Empire Mall BACM 2006-6 176,300,000 Interest Only 120
3403673 LNR Xxxxxx Xxxxxx X, XX, & XXX XXXX 0000-0 174,000,000 Interest Only 120
45829 Chicago Loop Portfolio BACM 2006-6 165,000,000 IO, Balloon 37
3403489 EZ Storage Portfolio BACM 2006-6 150,000,000 Interest Only 121
47556 Xxxxxx Center BACM 2006-6 106,000,000 Interest Only 60
3402794 1700 Xxxxxxxxx Xxxxxx Xxxxxx XXXX 0000-0 39,000,000 Interest Only 60
3403099 Riverstone at Xxxxxx Xxxxx BACM 2006-6 36,300,000 Interest Only 120
3402538 3443 Xxxxxxxxx Xxxxxx XXXX 0000-0 36,000,000 Interest Only 60
3403071 Registry at Xxxxxxx Xxxx XXXX 0000-0 28,000,000 Interest Only 84
3402145 Central Park Corporate Center BACM 2006-6 26,500,000 Interest Only 60
3402356 Xx. Xxxxxxx Xxxxxxxxxx XXXX 0000-0 26,500,000 IO, Balloon 60
47888 University Courtyard Apartments BACM 2006-6 25,800,000 IO, Balloon 24
3403379 Xxxxx Xxxxxxxxxxx XXXX 0000-0 25,500,000 IO, Balloon 60
3402501 Merced Xxxxxxxxxxx XXXX 0000-0 22,000,000 IO, Balloon 78
3402895 Xxx Xxxxxxx xx Xxxxxxxxx Xxxxxxxxxx XXXX 0000-0 20,200,000 IO, Balloon 48
3403055 Xxxxx Xxxx Xxxxxxxxxx XXXX 0000-0 20,000,000 Interest Only 84
3402733 Sunrise Marketplace BACM 2006-6 19,175,000 Interest Only 120
3403161 Xxxxxxxx Xxxxxxx Xxxxxxxxxx XXXX 0000-0 19,000,000 Interest Only 60
3402270 Xxxxxxxxxx Xxxxxxx - Xxxx Xxxxxxx XXXX 0000-0 17,850,000 Interest Only 120
3402271 Xxxxxxxxxx Xxxxxxx - Xxxxxxxx XXXX 0000-0 16,200,000 Interest Only 120
3402283 Xxxxxxxxxx Xxxxxxx - Xxxxxx XXXX 0000-0 15,600,000 Interest Only 120
3402273 Xxxxxxxxxx Xxxxxxx - Xxxxxxxxxx XXXX 0000-0 15,375,000 Interest Only 120
3402275 Xxxxxxxxxx Xxxxxxx - Xxxxx Xxxxx XXXX 0000-0 14,887,500 Interest Only 120
3402404 Enclave at Xxxx'x Xxxxx Xxxxxxxxxx XXXX 0000-0 14,440,000 IO, Balloon 36
3403059 Cambridge Office Portfolio BACM 2006-6 14,200,000 IO, Balloon 24
3402276 Xxxxxxxxxx Xxxxxxx - Xxxxxx XXXX 0000-0 14,100,000 Interest Only 120
3401990 Cal Mira Mesa BACM 2006-6 13,750,000 IO, Balloon 60
3402053 Xxxxx Xxxxxx Xxxxxxxxxx XXXX 0000-0 13,500,000 IO, Balloon 36
3401956 Xxxxxx Xxxxx Xxxxxxxxxxx XXXX 0000-0 13,500,000 IO, Balloon 72
3402176 Xxxxxxxxxxx Xxxxxx Xxxxxxxxxx XXXX 0000-0 11,750,000 Interest Only 60
3402126 Brookside Manors BACM 2006-6 11,402,422 IO, Balloon 36
47805 Kettering Towne Center BACM 2006-6 11,175,000 IO, Balloon 36
18259 Forum Shopping Center BACM 2006-6 9,400,000 IO, Balloon 36
19668 Blossom Village BACM 2006-6 9,200,000 IO, Balloon 36
3402985 Arapahoe Ridge BACM 2006-6 9,100,000 Interest Only 120
3401914 Xxxxxxxx Xxxxx XXXX 0000-0 8,900,000 IO, Balloon 18
19866 Wyoga Towers BACM 2006-6 8,700,000 IO, Balloon 36
3402144 Courtyard Apartments BACM 2006-6 8,200,000 IO, Balloon 36
3402816 Xxx X - Xxxxx Xxxxxx XXXX 0000-0 8,120,000 IO, Balloon 60
3402282 Xxxxxxxxxx Xxxxxxx - Xxxxxxxxxx XXXX 0000-0 7,485,763 Interest Only 120
3402121 First Park Ten BACM 2006-6 7,000,000 IO, Balloon 36
3402520 Drake Crossings Retail Center BACM 2006-6 7,000,000 IO, Balloon 72
20216 Xxxxxxxxxx Xxxx - Xxxxxx XXXX 0000-0 6,900,000 IO, Balloon 36
3400759 Kohl's-Lutz, FL BACM 2006-6 6,900,000 IO, Balloon 60
3403383 Xxxxx Xxxxxxxxxxx Xxxx XXXX 0000-0 6,500,000 IO, Balloon 60
18967 Park Plaza Self Storage Portfolio BACM 2006-6 5,800,000 IO, Balloon 24
3403158 Xxxxx Xxxxxx - Xxxxxx Xxxxx XXXX 0000-0 5,275,000 Xxxxxxxx Xxxx 000
00000 Xxxxx Xxxxx Xxxxx XXXX 0000-0 5,200,000 IO, Balloon 24
47893 Walgreens - Decatur BACM 2006-6 5,200,000 Interest Only, Hyper Am 120
18587 Xxxxxx Plaza Retail BACM 2006-6 5,120,000 IO, Balloon 36
3403159 Xxxxx Xxxxxx - Xxxx Xxxxx XXXX 0000-0 5,000,000 Interest Only 120
3402894 0000 Xxxxxx Xxxxxx BACM 2006-6 4,550,000 IO, Balloon 84
42633 Lake Forest Crossing BACM 2006-6 4,520,000 Interest Only 72
47434 000 Xxxx Xxxxxx XXXX 0000-0 4,500,000 IO, Balloon 48
3401377 Walgreen's at Xxxxxx XXXX 0000-0 4,404,655 IO, Balloon 24
3402860 Tallahassee Storage BACM 2006-6 4,000,000 IO, Balloon 36
3402125 Gallery I BACM 2006-6 3,800,000 IO, Balloon 12
3402856 449 XxXxxx BACM 2006-6 3,600,000 IO, Balloon 36
47410 Showtime Cinemas BACM 2006-6 3,425,000 IO, Balloon 24
59766 Makena Xxxxxxx Xxxxxx Xxxxxx XXXX 0000-0 3,375,000 IO, Balloon 60
47606 0000 Xxxxxxxxx Xxxxxx BACM 2006-6 3,125,000 IO, Balloon 12
47605 1791 Grand Concourse BACM 2006-6 3,050,000 IO, Balloon 12
47470 1916 Grand Concourse BACM 2006-6 3,000,000 IO, Balloon 12
20640 Xxxxxxxx Properties BACM 2006-6 2,640,000 IO, Balloon 24
18721 Xxxxxx Mini Storage BACM 2006-6 2,325,000 IO, Balloon 32
47607 0000 Xxxx Xxxxxx BACM 2006-6 1,675,000 IO, Balloon 12
19433 Walgreens Anoka BACM 2006-6 1,500,000 IO, Balloon 24
19443 Plaza del Sol BACM 2006-6 1,250,000 IO, Balloon 24
LoanNumber Loan Group % of Loan Group % of Pool
---------- ----------- --------------- ---------
3403433 1 15.0% 12.4%
58850 1 13.4% 11.1%
3219700 1 8.7% 7.2%
3403673 1 8.6% 7.1%
45829 1 8.1% 6.7%
3403489 1 7.4% 6.1%
47556 1 5.2% 4.3%
3402794 1 1.9% 1.6%
3403099 2 8.4% 1.5%
3402538 2 8.4% 1.5%
3403071 2 6.5% 1.1%
3402145 1 1.3% 1.1%
3402356 2 6.2% 1.1%
47888 2 6.0% 1.0%
3403379 1 1.3% 1.0%
3402501 1 1.1% 0.9%
3402895 2 4.7% 0.8%
3403055 2 4.7% 0.8%
3402733 1 0.9% 0.8%
3403161 2 4.4% 0.8%
3402270 2 4.2% 0.7%
3402271 2 3.8% 0.7%
3402283 2 3.6% 0.6%
3402273 2 3.6% 0.6%
3402275 2 3.5% 0.6%
3402404 2 3.4% 0.6%
3403059 1 0.7% 0.6%
3402276 2 3.3% 0.6%
3401990 1 0.7% 0.6%
3402053 2 3.1% 0.5%
3401956 1 0.7% 0.5%
3402176 2 2.7% 0.5%
3402126 2 2.7% 0.5%
47805 1 0.5% 0.5%
18259 1 0.5% 0.4%
19668 2 2.1% 0.4%
3402985 1 0.4% 0.4%
3401914 1 0.4% 0.4%
19866 2 2.0% 0.4%
3402144 2 1.9% 0.3%
3402816 1 0.4% 0.3%
3402282 2 1.7% 0.3%
3402121 1 0.3% 0.3%
3402520 1 0.3% 0.3%
20216 1 0.3% 0.3%
3400759 1 0.3% 0.3%
3403383 1 0.3% 0.3%
18967 1 0.3% 0.2%
3403158 2 1.2% 0.2%
48058 1 0.3% 0.2%
47893 1 0.3% 0.2%
18587 1 0.3% 0.2%
3403159 2 1.2% 0.2%
3402894 1 0.2% 0.2%
42633 1 0.2% 0.2%
47434 1 0.2% 0.2%
3401377 1 0.2% 0.2%
3402860 1 0.2% 0.2%
3402125 1 0.2% 0.2%
3402856 1 0.2% 0.1%
47410 1 0.2% 0.1%
59766 1 0.2% 0.1%
47606 2 0.7% 0.1%
47605 2 0.7% 0.1%
47470 2 0.7% 0.1%
20640 2 0.6% 0.1%
18721 1 0.1% 0.1%
47607 2 0.4% 0.1%
19433 1 0.1% 0.1%
19443 1 0.1% 0.1%
SCHEDULE VI
Mortgage Loans Containing Additional Debt
LoanNumber PropertyName LoanTransaction Cutoff Balance Existing Additional Debt
---------- ----------------------------------------- --------------- -------------- ------------------------
3403489 EZ Storage Portfolio BACM 2006-6 150,000,000 Yes
47225 Xxxxxx Xxxxx & Xxxxxxxxx Xxx Xxxxxx Xxxxx XXXX 0000-0 40,964,616 Yes
3402270 Xxxxxxxxxx Xxxxxxx - Xxxx Xxxxxxx XXXX 0000-0 17,850,000 Yes
3402271 Xxxxxxxxxx Xxxxxxx - Xxxxxxxx XXXX 0000-0 16,200,000 Yes
3402283 Xxxxxxxxxx Xxxxxxx - Xxxxxx XXXX 0000-0 15,600,000 Yes
3402273 Xxxxxxxxxx Xxxxxxx - Xxxxxxxxxx XXXX 0000-0 15,375,000 Yes
3402275 Xxxxxxxxxx Xxxxxxx - Xxxxx Xxxxx XXXX 0000-0 14,887,500 Yes
3402276 Xxxxxxxxxx Xxxxxxx - Xxxxxx XXXX 0000-0 14,100,000 Yes
3402282 Xxxxxxxxxx Xxxxxxx - Xxxxxxxxxx XXXX 0000-0 7,485,763 Yes
00000 Xxxxxxxxxx Xxxx - Retail BACM 2006-6 6,900,000 Yes
3403433 Xxxxxxxxxx Xxxxxxxx XXXX 0000-0 305,000,000 No
3219700 The Empire Mall BACM 2006-6 176,300,000 No
00000 Xxxxxxx Xxxx Portfolio BACM 2006-6 165,000,000 No
3402307 Impac Center BACM 2006-6 91,100,000 No
3402733 Xxxxxxx Xxxxxxxxxxx XXXX 0000-0 19,175,000 No
47229 Xx Xxxxxx Xxxxxxx Xxxxxx XXXX 0000-0 17,391,895 No
3401990 Cal Mira Mesa BACM 2006-6 13,750,000 No
17437 JCC-One BACM 2006-6 12,200,000 No
3401914 Xxxxxxxx Xxxxx XXXX 0000-0 8,900,000 No
00000 Xxxx Xxxxx Xxxx Xxxxxxx Xxxxxxxxx XXXX 0000-0 5,800,000 No
3401884 Alamo Rent-A-Car Xxxxxxx XXXX 0000-0 5,595,689 No
19135 Comfort Xxxxxx-Xxxxxxxxx XXXX 0000-0 5,467,314 No
00000 Xxxxxx Xxxxx Retail BACM 2006-6 5,120,000 No
47841 Ramada Inn BACM 2006-6 4,492,300 No
00000 Xxxxxxx Xxxx Xxxxxxxxxx XXXX 0000-0 4,196,598 No
18138 Keymac Building BACM 2006-6 3,320,000 No
20608 Staples Akron BACM 2006-6 2,597,826 No
LoanNumber Existing Additional Debt Amount Existing Additional Debt Description Future Debt Permitted?
---------- ------------------------------- ----------------------------------------------------- ----------------------
3403489 178,500,000 Pari Passu (A-2: 150,000,000); Mezzanine (28,500,000) No
47225 2,000,000 Mezzanine Debt (CP Inducement Loan) No
3402270 3,252,900 Xxxxxxxxx Xx
0000000 2,354,558 Xxxxxxxxx Xx
0000000 2,154,091 Xxxxxxxxx Xx
0000000 3,075,000 Xxxxxxxxx Xx
0000000 1,444,136 Xxxxxxxxx Xx
0000000 2,095,346 Mezzanine No
3402282 670,524 Mezzanine No
20216 500,000 Subordinate Secured Yes
3403433 Yes
3219700 Yes
45829 Yes
3402307 Yes
3402733 Yes
47229 Yes
3401990 Yes
17437 Yes
3401914 Yes
18967 Yes
3401884 Yes
19135 Yes
18587 Yes
47841 Yes
19391 Yes
18138 Yes
20608 Yes
LoanNumber Future Debt Amount Permitted
---------- --------------------------------------------------------------------------------
3403489
47225
3402270
3402271
3402283
3402273
3402275
3402276
3402282
20216 After 36 months from securitization, LTV<= 80%, DSCR >= 1.20x
3403433 Prior to the ARD, LTV <= 75%, DSCR >= 1.25x
3219700 LTV <= 80%, DSCR >= 1.25x
45829 9,500,000
3402307 LTV <= 75%, DSCR >= 1.10x
3402733 After 10/1/2008, LTV <= 85%, DSCR >= 1.20x
47229 LTV <= 70%, DSCR>=1.35x
3401990 On or after two years from closing, LTV <= 75%, DSCR >= 1.20x
17437 After 24 months from securitization, LTV <= 80%, DSCR >= 1.25x
3401914 On or after the date that is three years from closing, LTV <= 70%, DSCR >= 1.30x
18967
3401884 On or after three years from closing, LTV <= 80%, DSCR >= 1.20x
19135 On or after 12 months from securitization, LTV <= 75%, DSCR >= 1.10x
18587 After 24 months from securitization, LTV<= 80%, DSCR >= 1.20x
47841
19391 After 12 months from securitization, LTV <= 80%, DSCR >= 1.20x
18138
20608 After 48 months from securitization, LTV <= 75%, DSCR >= 1.25x
LoanNumber Future Debt Description Loan Group % of Loan Group % of Pool
---------- ------------------------------------------------------------------------ ----------- --------------- ---------
3403489 1 7.4% 6.1%
47225 1 2.0% 1.7%
3402270 2 4.2% 0.7%
3402271 2 3.8% 0.7%
3402283 2 3.6% 0.6%
3402273 2 3.6% 0.6%
3402275 2 3.5% 0.6%
3402276 2 3.3% 0.6%
3402282 2 1.7% 0.3%
20216 Subordinate Secured 1 0.3% 0.3%
3403433 Mezzanine 1 15.0% 12.4%
3219700 Mezzanine 1 8.7% 7.2%
45829 Future Pari-Passu Earnout of up to $9,500,000; LTV <= lesser of (i) 75%, 1 8.1% 6.7%
(ii) LTV at closing; DSCR >= greater of (i) 1.20x, (ii) DSCR at closing
3402307 Mezzanine 1 4.5% 3.7%
3402733 Mezzanine 1 0.9% 0.8%
47229 Mezzanine 1 0.9% 0.7%
3401990 Mezzanine 1 0.7% 0.6%
17437 Subordinate Secured 1 0.6% 0.5%
3401914 Mezzanine 1 0.4% 0.4%
18967 Unsecured 1 0.3% 0.2%
3401884 Mezzanine 1 0.3% 0.2%
19135 Subordinate Secured 1 0.3% 0.2%
18587 Subordinate Secured 1 0.3% 0.2%
47841 Borrower can incur loans from any partner of the Borrower, provided that 1 0.2% 0.2%
such debt is (A) unsecured and non-transferable, (B) evidenced only on
the books of the Borrower (and not by a note) (C) subject to prior
written consent of Lender and (D) subject to a full subordination and
standstill agreement with Lender, if required in Lender's sole
discretion.
19391 Subordinate Secured 2 1.0% 0.2%
18138 Subordinate Unsecured Member Loans 1 0.2% 0.1%
20608 Subordinate Secured 1 0.1% 0.1%
SCHEDULE VII
[RESERVED.]
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:
Relevant Servicing Criteria Applicable
Party(ies)
Reference Criteria
General Servicing Considerations
1122(d)(1)(i) 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
Primary Servicer
1122(d)(1)(ii) 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
Primary Servicer
1122(d)(1)(iii) Any requirements in the transaction agreements to maintain a back-up servicer for the N/A
mortgage loans are maintained.
1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in effect on the party participating in Trustee
the servicing function throughout the reporting period in the amount of coverage required Master Servicer
by and otherwise in accordance with the terms of the transaction agreements. Special Servicer
Primary Servicer
Cash Collection and Administration
1122(d)(2)(i) 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
Primary Servicer
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an obligor or to an investor are made Trustee
only by authorized personnel.
1122(d)(2)(iii) 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
specified in the transaction agreements. Trustee
1122(d)(2)(iv) 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
Primary Servicer
1122(d)(2)(v) 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
Exchange Act.
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent unauthorized access. Master Servicer
Special Servicer
Trustee
Primary Servicer
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for all asset-backed securities related Trustee
bank accounts, including custodial accounts and related bank clearing accounts. These Master Servicer
reconciliations are (A) mathematically accurate; (B) prepared within 30 calendar days Special Servicer
after the bank statement cutoff date, or such other number of days specified in the Primary Servicer
transaction agreements; (C) reviewed and approved by someone other than the person who
prepared the reconciliation; and (D) contain explanations for reconciling items. These
reconciling items are resolved within 90 calendar days of their original identification,
or such other number of days specified in the transaction agreements.
Investor Remittances and Reporting
1122(d)(3)(i) 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
the Servicer.
1122(d)(3)(ii) Amounts due to investors are allocated and remitted in accordance with timeframes, Trustee
distribution priority and other terms set forth in the transaction agreements.
1122(d)(3)(iii) Disbursements made to an investor are posted within two business days to the Servicer's Trustee
investor records, or such other number of days specified in the transaction agreements.
1122(d)(3)(iv) Amounts remitted to investors per the investor reports agree with cancelled checks, or Trustee
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
1122(d)(4)(ii) Mortgage loan and related documents are safeguarded as required by the transaction Trustee
agreements.
1122(d)(4)(iii) Any additions, removals or substitutions to the asset pool are made, reviewed and approved Trustee
in accordance with any conditions or requirements in the transaction agreements. Master Servicer
Special Servicer
Primary Servicer
1122(d)(4)(iv) 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., escrow)
in accordance with the related mortgage loan documents.
1122(d)(4)(v) The Servicer's records regarding the mortgage loans agree with the Servicer's records with Master Servicer
respect to an obligor's unpaid principal balance. Primary Servicer
1122(d)(4)(vi) 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)(vii) 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
established by the transaction agreements.
1122(d)(4)(viii) Records documenting collection efforts are maintained during the period a mortgage loan is Master Servicer
delinquent in accordance with the transaction agreements. Such records are maintained on Special Servicer
at least a monthly basis, or such other period specified in the transaction agreements, Primary Servicer
and describe the entity's activities in monitoring delinquent mortgage loans including,
for example, phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or unemployment).
1122(d)(4)(ix) Adjustments to interest rates or rates of return for mortgage loans with variable rates Master Servicer
are computed based on the related mortgage loan documents. Primary Servicer
1122(d)(4)(x) Regarding any funds held in trust for an obligor (such as escrow accounts): (A) such funds Master Servicer
are analyzed, in accordance with the obligor's mortgage loan documents, on at least an Primary Servicer
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 number of
days specified in the transaction agreements.
1122(d)(4)(xi) 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 the
transaction agreements.
1122(d)(4)(xii) 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 late Primary Servicer
payment was due to the obligor's error or omission. Master Servicer
1122(d)(4)(xiii) 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
the transaction agreements.
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible accounts are recognized and recorded in Master Servicer
accordance with the transaction agreements. Primary Servicer
1122(d)(4)(xv) Any external enhancement or other support, identified in Item 1114(a)(1) through (3) or N/A
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 o Master Servicer
Performance Information:
o Trustee
o Item 1121(a)(13) of
Regulation AB
Item 1B: Distribution and Pool o Trustee
Performance Information:
o Item 1121 (a)(14) of o Depositor
Regulation AB
Item 2: Legal Proceedings:
o Item 1117 of Regulation o Master Servicer (as to itself)
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 o Depositor
of Proceeds
Item 4: Defaults Upon Senior o Trustee
Securities
Item 5: Submission of Matters to a o Trustee
Vote of Security Holders
Item 6: Significant Obligors of o Depositor
Pool Assets
o Sponsor
o Mortgage Loan Seller
o Master Servicer
o Primary Servicer (as to loans
serviced by it)
Item 7: Significant Enhancement o Depositor
Provider Information
Item 8: Other Information o Trustee
(information required to be
disclosed on Form 8-K that was not o Any other party responsible for
properly disclosed) 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 o Trustee
(information required to be
disclosed on Form 8-K that was not o Any other party responsible for
properly disclosed) disclosure items on Form 8-K
Item 15: Exhibits, Financial o Trustee
Statement Schedules
o Depositor
Additional Item: o Master Servicer (as to itself)
Disclosure per Item 1117 of o Special Servicer (as to itself)
Regulation AB (to the extent
material to 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
Additional Item: o Master Servicer (as to itself)
Disclosure per Item 1119 of o Special Servicer (as to itself)
Regulation AB (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 o Each Seller as sponsor (as defined
Regulation AB in Regulation AB)
o Master Servicer
Additional Item: o Depositor
Disclosure per Items 1114(b)(2) and o Master Servicer
1115(b) of Regulation AB
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 All parties (only as to the agreements
Definitive Agreement such entity is a party to or entered
into on behalf of the Trust)
Item 1.02- Termination of a All parties (only as to the agreements
Material Definitive Agreement such entity is a party to or entered
into on behalf of the Trust)
Item 1.03- Bankruptcy or o Depositor
Receivership
Item 2.04- Triggering Events that o Depositor
Accelerate or Increase a Direct
Financial Obligation or an
Obligation under an Off-Balance
Sheet Arrangement
Item 3.03- Material Modification to o Trustee
Rights of Security Holders
Item 5.03- Amendments of Articles o Depositor
of Incorporation or Bylaws; Change
of Fiscal Year
Item 6.01- ABS Informational and o Depositor
Computational Material
Item 6.02- Change of Servicer or o Master Servicer
Trustee
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 o Depositor
Enhancement or External Support
o Trustee
Item 6.04- Failure to Make a o Trustee
Required Distribution
Item 6.05- Securities Act Updating o Depositor
Disclosure
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, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: Corporate Trust Services (CMBS), 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 November 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, CWCapital
Asset Management LLC, 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
