EXHIBIT 4
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XXXX XX XXXXXXX COMMERCIAL MORTGAGE INC.,
Depositor,
BANK OF AMERICA, NATIONAL ASSOCIATION,
Master Servicer,
MIDLAND LOAN SERVICES, INC.,
Special Servicer,
HSBC FINANCIAL SERVICES (CAYMAN) LIMITED,
Cayman Collateral Trustee
and
XXXXX FARGO BANK, N.A.,
Trustee and REMIC Administrator
----------------------------
POOLING AND SERVICING AGREEMENT
Dated as of March 1, 2006
----------------------------
$2,037,667,323
Commercial Mortgage Pass-Through Certificates
Series 2006-1
================================================================================
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS; CERTAIN CALCULATIONS IN RESPECT OF THE MORTGAGE POOL
AND THE CERTIFICATES
Section 1.01 Defined Terms................................................
Section 1.02 Rules of Construction; Other Definitional Provisions.........
Section 1.03 Certain Calculations in Respect of the Mortgage Pool.........
Section 1.04 Cross-Collateralized Mortgage Loans..........................
Section 1.05 Incorporation of Preliminary Statement.......................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES; ORIGINAL
ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans.................................
Section 2.02 Acceptance of the Torre Mayor Loan REMIC and REMIC I by
Trustee.....................................................
Section 2.03 Mortgage Loan Seller's Repurchase or Substitution of
Mortgage Loans for Material Document Defects and
Material Breaches...........................................
Section 2.04 Representations and Warranties of the Depositor..............
Section 2.05 Representations and Warranties of the Master Servicer........
Section 2.06 Representations and Warranties of the Special Servicer.......
Section 2.07 Representations and Warranties of the Trustee and the
REMIC Administrator.........................................
Section 2.08 Creation of the Torre Mayor Loan REMIC Regular Interest
and the Torre Mayor Loan REMIC Residual Interest............
Section 2.09 Issuance of the Class R-I Certificates; Creation of the
REMIC I Regular Interests...................................
Section 2.10 Conveyance of REMIC I Regular Interests; Acceptance of
REMIC II by the Trustee.....................................
Section 2.11 Issuance of the REMIC II Certificates........................
Section 2.12 Loss of Value Reserve Fund Provisions........................
Section 2.13 Designation of Grantor Trust.................................
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
Section 3.01 Administration of the Serviced Loans.........................
Section 3.02 Collection of Mortgage Loan Payments.........................
Section 3.03 Collection of Taxes, Assessments and Similar Items;
Servicing Accounts; Servicing Advances; Reserve Accounts....
Section 3.04 Certificate Account, Distribution Account, Torre Mayor
Loan REMIC Distribution Account, REMIC I Distribution
Account, REMIC II Distribution Account, Excess Interest
Distribution Account, Excess Liquidation Proceeds
Account, the Class A-SBFL Floating Rate Account and
Serviced Whole Loan Custodial Account.......................
Section 3.05 Permitted Withdrawals From the Certificate Account, the
Distribution Account, the Serviced Whole Loan Custodial
Accounts, the Class A-SBFL Floating Rate Account and the
Excess Liquidation Proceeds Account.........................
Section 3.06 Investment of Funds in the Certificate Account, the
Interest Reserve Account, the Excess Interest
Distribution Account, the Torre Mayor Loan REMIC
Distribution Account, the REMIC I Distribution Account,
the REMIC II Distribution Account, the Excess
Liquidation Proceeds Account, the Class A-SBFL Floating
Rate Account and the REO Account............................
Section 3.07 Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage.......................................
Section 3.08 Enforcement of Alienation Clauses............................
Section 3.09 Realization Upon Defaulted Serviced Loans....................
Section 3.10 Trustee to Cooperate; Release of Mortgage Files..............
Section 3.11 Servicing Compensation; Interest on Servicing Advances;
Payment of Certain Expenses; Obligations of the Trustee
Regarding Back-up Servicing Advances........................
Section 3.12 Inspections; Collection of Financial Statements..............
Section 3.13 [Reserved]...................................................
Section 3.14 [Reserved]...................................................
Section 3.15 Access to Certain Information................................
Section 3.16 Title to REO Property; REO Account...........................
Section 3.17 Management of REO Property...................................
Section 3.18 Resolution of Defaulted Serviced Loans and REO Properties....
Section 3.19 Additional Obligations of the Master Servicer and the
Special Servicer............................................
Section 3.20 Modifications, Waivers, Amendments and Consents..............
Section 3.21 Transfer of Servicing Between Master Servicer and Special
Servicer; Record Keeping; Asset Status Report; Directing
Certificateholder...........................................
Section 3.22 Sub-Servicing Agreements.....................................
Section 3.23 Designation of the Special Servicer by the Majority
Certificateholder of the Controlling Class..................
Section 3.24 Confidentiality..............................................
Section 3.25 No Solicitation of Prepayments...............................
Section 3.26 Certain Matters with Respect to Mortgage Loans Permitting
Defeasance, Franchise Mortgage Loans and Certain
Mortgage Loans Permitting Additional Debt...................
Section 3.27 Application of Default Charges...............................
Section 3.28 Matters Regarding the Whole Loans............................
Section 3.29 Matters Regarding the KinderCare Portfolio Whole Loan and
the Torre Mayor Whole Loan..................................
Section 3.30 Certain Powers of the Controlling Holders and Certain
Intercreditor Matters.......................................
Section 3.31 Matters Regarding the Torre Mayor Pari Passu Note A-2
Mortgage Loan and the Cayman Islands Mortgage Loan..........
Section 3.32 Class A-SBFL Swap Contract...................................
Section 3.33 Pending Amendment of KinderCare Portfolio Whole 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...................................................
Section 11.15 Companion Loans..............................................
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-3A Certificate
EXHIBIT A-4 Form of Class A-3B Certificate
EXHIBIT A-5 Form of Class A-SBFL Certificate
EXHIBIT A-6 Form of Class A-4 Certificate
EXHIBIT A-7 Form of Class A-1A Certificate
EXHIBIT A-8 Form of Class XC Certificate
EXHIBIT A-9 Form of Class XP Certificate
EXHIBIT A-10 Form of Class A-M Certificate
EXHIBIT A-11 Form of Class A-J Certificate
EXHIBIT A-12 Form of Class B Certificate
EXHIBIT A-13 Form of Class C Certificate
EXHIBIT A-14 Form of Class D Certificate
EXHIBIT A-15 Form of Class E Certificate
EXHIBIT A-16 Form of Class F Certificate
EXHIBIT A-17 Form of Class G Certificate
EXHIBIT A-18 Form of Class H Certificate
EXHIBIT A-19 Form of Class J Certificate
EXHIBIT A-20 Form of Class K Certificate
EXHIBIT A-21 Form of Class L Certificate
EXHIBIT A-22 Form of Class M Certificate
EXHIBIT A-23 Form of Class N Certificate
EXHIBIT A-24 Form of Class O Certificate
EXHIBIT A-25 Form of Class P Certificate
EXHIBIT A-26 Form of Class Q Certificate
EXHIBIT A-27 Form of Class R-I Certificate
EXHIBIT A-28 Form of Class R-II Certificate
EXHIBIT A-29 Form of Class R-TM Certificate
EXHIBIT A-30 Form of Class V Certificate
EXHIBIT B Form of Investment Representation Letter
EXHIBIT C-1 Form of Transfer Affidavit and Agreement Pursuant to
Section 5.02(d)(i)(B)
EXHIBIT C-2 Form of Transferor Certificate Pursuant to
Section 5.02(d)(i)(D)
EXHIBIT D Request for Release
EXHIBIT E Form of ERISA Representation Letter
EXHIBIT F Form of Custodial Certification
EXHIBIT G Form of Trustee Distribution Date Statement
EXHIBIT H Request for Review
EXHIBIT I Form of Notice Regarding Purchase Option Exercise
EXHIBIT J Form of Notice and Certification Regarding Defeasance of
Mortgage Loan
EXHIBIT K Form of Certification to be Provided with Form 10-K
EXHIBIT L Form of Certification to be Provided to Depositor
EXHIBIT M Form of Confidentiality Agreement
EXHIBIT N Form of Regulation S Certificate
EXHIBIT O Form of Transfer Certificate for Exchange or Transfer from
Domestic Global Certificate to Regulation S Global Certificate
During the Restricted Period
EXHIBIT P Form of Transfer Certificate for Exchange or Transfer from
Domestic Global Certificate to Regulation S Global Certificate
After the Restricted Period
EXHIBIT Q Form of Transfer Certificate for Exchange or Transfer from
Regulation S Global Certificate to Domestic Global Certificate
SCHEDULE I Mortgage Loan Schedule
SCHEDULE II Sub-Servicing Agreements in Effect as of the Closing Date
SCHEDULE III Schedule of Exceptions under Section 2.02(a)
SCHEDULE IV Class XP Reference Rates
SCHEDULE V Mortgage Loans that Initially Pay Interest Only
SCHEDULE VI Mortgage Loans Containing Additional Debt
SCHEDULE VII Schedule of Controlling Holders and Operating Advisors
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 March 1, 2006, is by and among BANC OF AMERICA COMMERCIAL
MORTGAGE INC., as Depositor, BANK OF AMERICA, NATIONAL ASSOCIATION, as Master
Servicer, MIDLAND LOAN SERVICES, INC., as Special Servicer, HSBC FINANCIAL
SERVICES (CAYMAN) LIMITED, solely as Cayman Collateral Trustee, 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 three segregated
pools of assets within the Trust Fund (exclusive of the Excess Interest, the
Excess Interest Distribution Account, the Class A-SBFL Regular Interest, the
Class A-SBFL Swap Contract and the Class A-SBFL Floating Rate Account) be
treated for federal income tax purposes as three separate real estate mortgage
investment conduits (the "Torre Mayor Loan REMIC", "REMIC I" and "REMIC II",
respectively).
Torre Mayor Loan REMIC
The Trustee will elect to treat the segregated pool of assets
consisting of the Torre Mayor Pari Passu Note A-2 Mortgage Loan (exclusive of
Excess Interest) and certain other related assets subject to this Agreement as a
REMIC for federal income tax purposes, and such segregated pool of assets will
be designated as the "Torre Mayor Loan REMIC". The Class R-TM Certificates will
represent the sole class of "residual interests" in the Torre Mayor Loan REMIC
for purposes of the REMIC Provisions. The Torre Mayor Loan REMIC Regular
Interests will represent the "regular interest" in the Torre Mayor Loan REMIC
for purposes of the REMIC Provisions, will have an initial principal balance
equal to $55,000,000, will not be certificated and will be held by REMIC I.
The following table sets forth the initial Torre Mayor Pari Passu
Note A-2 Mortgage Loan Balance and the Corresponding Torre Mayor Loan REMIC
Regular Interest:
Initial Torre Mayor Corresponding Mortgage Loan
Mortgage Loan Balance REMIC Regular Interest
--------------------- ----------------------
$55,000,000 Torre Mayor Pari Passu Note A-2
Mortgage Loan
Regular Interest
REMIC I
As provided herein, the Trustee will elect that the portion of the
Trust Fund consisting of the Majority Mortgage Loans (exclusive of Excess
Interest), the Torre Mayor Loan REMIC Regular Interest and certain other related
assets subject to this Agreement shall be treated as a REMIC for federal income
tax purposes, and such segregated asset pool will be designated as "REMIC I".
The REMIC I Regular Interests listed below under the heading "Corresponding
REMIC I Regular Interests" constitute "regular interests" in REMIC I and the
Class R-I Certificates constitute the sole Class of "residual interests" in
REMIC I created hereunder for purposes of the REMIC Provisions.
The following table sets forth the Class or Component designation,
the corresponding REMIC I Regular Interest (the "Corresponding REMIC I Regular
Interest"), and the Corresponding Components of the Class 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)(2) Principal Balance X Certificates(1)
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Class A-1 LA-1-1 $4,417,000 XA-1-1
LA-1-2 $5,489,000 XA-1-2
LA-1-3 $34,816,000 XA-1-3
LA-1-4 $36,778,000 XA-1-4
Class A-2 LA-2-1 $2,873,000 XA-2-1
LA-2-2 $39,740,000 XA-2-2
LA-2-3 $38,975,000 XA-2-3
LA-2-4 $2,812,000 XA-2-4
Class A-3A LA-3A-1 $37,229,000 XA-3A-1
LA-3A-2 $42,097,000 XA-3A-2
LA-3A-3 $50,774,000 XA-3A-3
Class X-0X XX-0X x00,000,000 XX-0X
Class A-SBFL $18,580,000
Regular
Interest LA-SBFL-1 XA-SB-1
LA-SBFL-2 $45,315,000 XA-SB-2
LA-SBFL-3 $39,450,000 XA-SB-3
LA-SBFL-4 $30,123,000 XA-SB-4
Class A-4 LA-4-1 $3,389,000 XA-4-1
LA-4-2 $51,749,000 XA-4-2
LA-4-3 $117,532,000 XA-4-3
LA-4-4 $443,830,000 XA-4-4
Class A-1A LA-1A-1 $522,000 XA-1A-1
LA-1A-2 $636,000 XA-1A-2
LA-1A-3 $6,535,000 XA-1A-3
LA-1A-4 $7,557,000 XA-1A-4
LA-1A-5 $7,500,000 XA-1A-5
LA-1A-6 $7,369,000 XA-1A-6
LA-1A-7 $7,747,000 XA-1A-7
LA-1A-8 $7,437,000 XA-1A-8
LA-1A-9 $7,552,000 XA-1A-9
LA-1A-10 $43,917,000 XA-1A-10
LA-1A-11 $6,266,000 XA-1A-11
LA-1A-12 $5,985,000 XA-1A-12
LA-1A-13 $5,878,000 XA-1A-13
LA-1A-14 $5,680,000 XA-1A-14
LA-1A-15 $234,818,000 XA-1A-15
Class A-M LA-M $203,766,000 XA-M
Class A-J LA-J $142,637,000 XA-J
Class B LB $20,377,000 XB
Class C LC $22,924,000 XC
Class D LD $20,376,000 XD-1
Class E LE-1 $10,179,000 XE-1
LE-2 $11,870,000 XE-2
LE-3 $13,610,000 XE-3
Class F LF-1 $4,792,000 XF-1
LF-2 $13,132,000 XF-2
LF-3 $2,453,000 XF-3
Class G LG-1 $1,415,000 XG-1
LG-2 $15,167,000 XG-2
LG-3 $8,889,000 XG-3
Class H LH-1 $8,365,000 XH-1
LH-2 $14,559,000 XH-2
Class J LJ-1 $2,660,000 XJ-1
LJ-2 $17,155,000 XJ-2
LJ-3 $8,203,000 XJ-3
Class K LK $7,641,000 XK
Class L LL-1 $2,731,000 XL-1
LL-2 $7,457,000 XL-2
Class M LM $7,641,000 XM
Class N LN $2,547,000 XN
Class O LO $5,095,000 XO
Class P LP $7,641,000 XP
Class Q LP $28,018,323 XQ
(1) The REMIC I Regular Interest or Interests and the Component or Components
of the Class X Certificates that correspond to any particular Class of
REMIC II Regular Certificates also correspond to each other and,
accordingly, constitute the (i) "Corresponding REMIC I Regular Interests"
and (ii) "Corresponding Components", respectively, with respect to each
other.
(2) The Class LA-SBFL Regular Interests do not correspond to any Class of
Certificates. The Class LA-SBFL Regular Interests correspond to the Class
A-SBFL Regular Interest.
REMIC II
As provided herein, the Trustee will elect to treat that portion of
the Trust Fund consisting of the REMIC I Regular Interests and certain other
assets subject to this Agreement as a REMIC for federal income tax purposes, and
such segregated asset pool will be designated as "REMIC II". The Class A-1,
Class A-2, Class A-3A, Class X-0X, Xxxxx X-0, 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, Class P and Class
Q Certificates and the Class A-SBFL Regular Interest will constitute "regular
interests" in REMIC II, and the Class R-II Certificates will constitute the sole
Class of "residual interests" in REMIC II for purposes of the REMIC Provisions.
The following table sets forth the designation, the approximate
initial Pass-Through Rate and the Initial Class Principal Balance for each of
the Classes of REMIC II Regular Certificates (which are issued by REMIC II) and
the Class A-SBFL Certificates:
Approximate Initial Initial Class
Designation Pass-Through Rate Principal Balance
--------------------------------------------------------------------------------
REMIC II Regular
Certificates
Class A-1 5.2190% per annum $81,500,000
Class A-2 5.3340% per annum $84,400,000
Class A-3A 5.4470% per annum $130,100,000
Class A-3B 5.4470% per annum $25,000,000
Class A-SBFL LIBOR + 0.20% per annum (1) $133,468,000
Class A-4 5.3720% per annum (2) $616,500,000
Class A-1A 5.3780% per annum (2) $355,399,000
Class A-M 5.4210% per annum (2) $203,766,000
Class A-J 5.4600% per annum (2) $142,637,000
Class B 5.4900% per annum (2) $20,377,000
Class C 5.5090% per annum (2) $22,924,000
Class D 5.6424% per annum (3) $20,376,000
Class E 5.7304% per annum (3) $35,659,000
Class F 5.7764% per annum (4) $20,377,000
Class G 5.7764% per annum (4) $25,471,000
Class H 5.7764% per annum (4) $22,924,000
Class J 5.7764% per annum (4) $28,018,000
Class K 5.0450% per annum (2) $7,641,000
Class L 5.0450% per annum (2) $10,188,000
Class M 5.0450% per annum (2) $7,641,000
Class N 5.0450% per annum (2) $2,547,000
Class O 5.0450% per annum (2) $5,095,000
Class P 5.0450% per annum (2) $7,641,000
Class Q 5.0450% per annum (2) $28,018,323
Class XC 0.0447% per annum (5) $2,037,667,323 (6)
Class XP 0.3406% per annum (5) $1,989,427,000 (6)
---------------
(1) The Pass-Through Rate applicable to the Class A-SBFL Certificates for each
Distribution Date will be a per annum rate equal to the LIBOR plus 0.20%.
In addition, under certain circumstances described herein, the
Pass-Through Rate applicable to the Class A-SBFL Certificates may convert
to a fixed rate equal to 5.3280% per annum. Subject to the provisions of
this Agreement and the Class A-SBFL Swap Contract, the Pass-Through Rate
applicable to the Class A-SBFL Certificates may convert to a fixed rate
equal to 5.3280% per annum. The initial LIBOR will be determined on March
10, 2006, and subsequent LIBOR rates will determined two LIBOR business
days before the start of the related Interest Accrual Period.
(2) Initial Pass-Through Rate. The Pass-Through Rate for the Class A-4, Class
A-1A, Class A-M, Class A-J, Class B, Class C, Class K, Class L, Class M,
Class N, Class O, Class P and Class Q Certificates for each Distribution
Date will not exceed the Weighted Average Adjusted Net Mortgage Rate for
such Distribution Date.
(3) Initial Pass-Through Rate. The Pass-Through Rate for the Class D and Class
E Certificates for each Distribution Date will equal the Weighted Average
Adjusted Net Mortgage Rate for such Distribution Date minus 0.134% and
0.0465%, respectively.
(4) Initial Pass-Through Rate. The Pass-Through Rate for the Class F, Class G,
Class H and Class J Certificates for each Distribution Date will equal the
Weighted Average Adjusted Net Mortgage Rate for such Distribution Date.
(5) 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".
(6) 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 Notional Amount.
The Class R-TM, 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 Torre
Mayor Loan REMIC Distribution Account after distributions of all amounts
distributable in respect of the Torre Mayor Loan REMIC Regular Interest, (ii)
remaining in the REMIC I Distribution Account after the distribution of all
amounts distributable in respect of the REMIC I Regular Interests and (iii)
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-TM, Class R-I and Class R-II Certificates, respectively.
The portion of the Trust Fund consisting of the Excess Interest and
the Excess Interest Distribution Account shall be treated as a grantor trust
(the "Excess Interest Grantor Trust") for federal income tax purposes. The Class
V Certificates represent undivided beneficial interests in the Excess Interest
Grantor Trust.
The portion of the Trust Fund consisting of the Class A-SBFL Regular
Interest, the Class A-SBFL Swap Contract, the Class A-SBFL Floating Rate Account
and the proceeds thereof shall be treated as another grantor trust (the "Class
A-SBFL Grantor Trust") for federal income tax purposes. The Class A-SBFL
Certificates will represent undivided beneficial interests in the Class A-SBFL
Grantor Trust.
As provided herein, the Trustee shall take all actions necessary to
ensure that the portions of the Trust Fund consisting of the Grantor Trusts will
maintain their respective status as a "grantor trust" under federal income tax
law and will not be treated as part of either REMIC I or REMIC II.
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, each 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 and the Class A-SBFL Regular Interest, for any
Distribution Date, one month's interest at the Pass-Through Rate applicable to
such Class of Certificates and the Class A-SBFL Regular Interest 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. Except with respect
to the Class A-SBFL Certificates, Accrued Certificate Interest shall be
calculated on the basis of a 360-day year consisting of twelve 30-day months.
Accrued Certificate Interest with respect to the Class A-SBFL Certificates shall
be calculated on an Actual/360 Basis; provided, however, that if a Class A-SBFL
Distribution Conversion has occurred, Accrued Certificate Interest with respect
to the Class A-SBFL Certificates shall be the same as for the Class A-SBFL
Regular Interest.
"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 related
REO Serviced Loan, for any Distribution Date, the annualized rate at which
interest would have to accrue thereon on a 30/360 Basis during the most recently
ended calendar month to produce the actual amount of interest accrued (or, if
such Loan or REO Serviced Loan, is prepaid, in whole or in part, or otherwise
liquidated during such calendar month, that otherwise would have accrued) in
respect of such Loan or REO Serviced Loan, as the case may be, at the related
Net Mortgage Rate in effect for such Loan or REO Serviced Loan during such
calendar month. Such rate shall be calculated by multiplying (i) the Net
Mortgage Rate (and, in the case of an ARD Loan after its Anticipated Repayment
Date, without giving effect to any Excess Interest or the Excess Interest Rate)
by (ii) the actual number of days of accrued interest for the related period for
such Loan or REO Serviced Loan, divided by 30; provided, however, that with
respect to such Loan or REO Serviced Loan, the Adjusted Net Mortgage Rate for
the one-month period (a) prior to the Due Dates in January and February in any
year that is not a leap year or in February in any year that is a leap year will
be the per annum rate stated in the related Mortgage Note as of the Closing Date
less the related Administrative Fee Rate and (b) prior to the Due Date in March
will be determined inclusive of one day of interest retained for each of the
one-month periods prior to the Due Dates in January and February in any year
that is not a leap year or February in any year that is a leap year.
"Administrative Fee Rate": With respect to each Mortgage Loan and
REO Serviced Loan, as specified in the Mortgage Loan Schedule, being the sum of
the related Master Servicing Fee Rate (and, in the case of a Non-Serviced
Mortgage Loan, the related Non-Serviced Mortgage Loan Primary Servicing Fee
Rate) and the Trustee Fee Rate.
"Advance": Any P&I Advance or Servicing Advance.
"Advance Interest": Interest accrued on any Advance at the
Reimbursement Rate and payable to the Master Servicer (or any Sub-Servicer), the
Special Servicer or the Trustee, as the case may be, all in accordance with
Section 3.11(g) or Section 4.03(d), as applicable.
"Adverse Grantor Trust Event": Either: (i) any impairment of the
status of the Grantor Trust as a "grantor trust" under subpart E, Part I of
subchapter J of the Code; or (ii) the imposition of a tax upon the Grantor Trust
or any of its assets or transactions.
"Adverse Rating Event": With respect to any Class of Rated
Certificates and each Rating Agency that has assigned a rating thereto, as of
any date of determination, the qualification, downgrade or withdrawal of the
rating then assigned to such Class of Rated Certificates by such Rating Agency
(or the placing of such Class of Rated Certificates on "negative credit watch"
status in contemplation of any such action with respect thereto).
"Adverse REMIC Event": With respect to any of REMIC I, REMIC II and
the Torre Mayor Loan REMIC, either (i) the endangerment of the status of such
REMIC as a REMIC or (ii), except as permitted by Section 3.17(a), the imposition
of a tax upon such REMIC or any of its assets or transactions (including,
without limitation, the tax on prohibited transactions as defined in Section
860F(a)(2) of the Code and the tax on certain contributions set forth in Section
860G(d) of the Code).
"Affiliate": With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise and the terms "controlling" and
"controlled" have the meanings correlative to the foregoing.
"Agreement": This Pooling and Servicing Agreement, together with all
amendments hereof and supplements hereto.
"Anticipated Repayment Date": With respect to any ARD Loan, the date
specified on the related Mortgage Note, as of which Excess Interest shall begin
to accrue on such Loan, which date is prior to the Stated Maturity Date for such
Loan.
"Applicable State Law": For purposes of Article X, the Applicable
State Law shall be (a) the laws of any state in which the Corporate Trust Office
of the Trustee is located, (b) the laws of the states in which any Loan
documents are held and/or any REO Properties are located, (c) such other state
and local law whose applicability shall have been brought to the attention of
the REMIC Administrator by either (i) an Opinion of Counsel delivered to it or
(ii) written notice from the appropriate taxing authority as to the
applicability of such state law, and (d) such other state or local law as to
which the REMIC Administrator has actual knowledge of applicability.
"Appraisal": With respect to any Mortgaged Property or REO Property
as to which an appraisal is required to be performed pursuant to the terms of
this Agreement, a narrative appraisal complying with Title XI of FIRREA (or, in
the case of a Loan or REO Serviced Loan with a Stated Principal Balance as of
the date of such appraisal of $2,000,000 or less, at the Special Servicer's
option, either a limited appraisal and a summary report or an internal valuation
prepared by the Special Servicer) that indicates the "market value" of the
subject property, as defined in 12 C.F.R. ss.225.62(g), and is conducted by a
Qualified Appraiser (or by the Special Servicer in the case of a limited
appraisal and summary report or internal valuation with respect to a Loan or an
REO Serviced Loan with a Stated Principal Balance as of the date of such
appraisal or valuation of $2,000,000 or less).
"Appraisal Reduction Amount": With respect to any Required Appraisal
Serviced Loan, an amount (calculated as of the Determination Date by the Special
Servicer immediately following the later of the date on which the most recent
relevant Appraisal acceptable for purposes of Section 3.19(b) was obtained by
the Special Servicer pursuant to this Agreement and the date of the most recent
Appraisal Trigger Event with respect to such Required Appraisal Serviced Loan)
equal to the excess, if any, of:
(1) the sum of (a) the Stated Principal Balance of such Required
Appraisal Serviced Loan as of such Determination Date, (b) to the extent not
previously advanced by or on behalf of the Master Servicer, or the Trustee, all
unpaid interest (net of Default Interest) accrued on such Required Appraisal
Serviced Loan through the most recent Due Date prior to such Determination Date,
(c) all unpaid Master Servicing Fees, Special Servicing Fees, Trustee Fees and
Additional Trust Fund Expenses accrued with respect to such Required Appraisal
Serviced Loan, (d) all related unreimbursed Advances made by or on behalf of the
Master Servicer, the Special Servicer or the Trustee with respect to such
Required Appraisal Serviced Loan and reimbursable out of the Trust Fund and all
Advances related to such Required Appraisal Serviced Loan that were not
reimbursed out of collections on such Required Appraisal Serviced Loan, together
with all unpaid Advance Interest accrued on such Advances, and (e) all currently
due but unpaid real estate taxes and assessments, insurance premiums and, if
applicable, ground rents in respect of the related Mortgaged Property or REO
Property, as applicable, for which neither the Master Servicer nor the Special
Servicer holds any Escrow Payments or Reserve Funds; over
(2) the sum of (x) the excess, if any, of (i) 90% of the Appraised
Value of the related Mortgaged Property or REO Property (subject to such
downward adjustments as the Special Servicer may deem appropriate in accordance
with the Servicing Standard (without implying any obligation to do so) based
upon its review of the related Appraisal and such other information as the
Special Servicer deems appropriate), as applicable, as determined by the most
recent relevant Appraisal acceptable for purposes of Section 3.19(b), over (ii)
the amount of any obligation(s) secured by any liens on such Mortgaged Property
or REO Property, as applicable, that are prior to the lien of such Required
Appraisal Serviced Loan, and (y) any Escrow Payments, Reserve Funds and/or
Letters of Credit held by the Master Servicer or the Special Servicer with
respect to such Required Appraisal Serviced Loan, the related Mortgaged Property
or any related REO Property (exclusive of any such items that are to be applied
to real estate taxes, assessments, insurance premiums and/or ground rents or
that were taken into account in determining the Appraised Value of the related
Mortgaged Property or REO Property, as applicable, referred to in clause
(2)(x)(i) of this definition).
Notwithstanding the foregoing, if (i) an Appraisal Trigger Event
occurs with respect to any Serviced Loan, (ii) either (A) no Appraisal has been
obtained or conducted, as applicable in accordance with Section 3.19(b), with
respect to the related Mortgaged Property during the 12 month period prior to
the date of such Appraisal Trigger Event or (B) there shall have occurred since
the date of the most recent Appraisal a material change in the circumstances
surrounding the related Mortgaged Property that would, in the Special Servicer's
judgment, materially affect the value of the property, and (iii) no new
Appraisal is obtained or conducted, as applicable in accordance with Section
3.19(b), within 60 days after such Appraisal Trigger Event, then (x) until such
new Appraisal is obtained or conducted, as applicable in accordance with Section
3.19(b), the Appraisal Reduction Amount shall equal 25% of the Stated Principal
Balance of such Required Appraisal Serviced Loan, and (y) upon receipt or
performance, as applicable in accordance with Section 3.19(b), of such new
Appraisal by the Special Servicer, the Appraisal Reduction Amount for such
Required Appraisal Serviced Loan will be recalculated in accordance with the
preceding sentence of this definition.
Also notwithstanding the foregoing, if and when any
Cross-Collateralized Mortgage Loan becomes a Required Appraisal Serviced Loan,
an Appraisal Reduction Amount shall be calculated for the entire
Cross-Collateralized Group to which that particular Cross-Collateralized
Mortgage Loan belongs as if such Cross-Collateralized Group was a single
mortgage loan secured by multiple properties, and any resulting Appraisal
Reduction Amount for such Cross-Collateralized Group shall be allocated among
the respective Cross-Collateralized Mortgage Loans forming that group on a pro
rata basis in accordance with the respective Stated Principal Balances of those
Serviced Loans.
In addition, notwithstanding the foregoing and for the avoidance of
doubt, for purposes of calculating Appraisal Reduction Amounts for determining
change of control with respect to any Serviced Whole Loan, references to the
Stated Principal Balance will be to the entire Stated Principal Balance thereof
(i.e., the aggregate Stated Principal Balances of the related Mortgage Loan and
the related Companion Loan(s)).
For the avoidance of doubt and for purposes of calculating Appraisal
Reduction Amounts in connection with any P&I Advance required to be made under
this Agreement for a Mortgage Loan constituting a part of a Serviced Whole Loan,
such calculation shall be made based upon and allocated solely to the Stated
Principal Balance of the Mortgage Loan contained in such Serviced Whole Loan and
shall exclude the Stated Principal Balance of the related Companion Loan.
Each Serviced Whole Loan will be treated as a single mortgage loan
for purposes of calculating an Appraisal Reduction Amount with respect to the
mortgage loans that comprise such Serviced Whole Loan.
Any Appraisal Reduction Amount for the Serviced Whole Loan shall be
deemed allocated to the related Serviced Pari Passu Companion Loans and Mortgage
Loan, pro rata, based on their respective outstanding principal balances.
In addition, notwithstanding anything to the contrary and for the
avoidance of doubt, Appraisal Reduction Amounts with respect to the (i)
KinderCare Portfolio Whole Loan shall be calculated in accordance with the
KinderCare Portfolio Pooling Agreement, and (ii) Torre Mayor Whole Loan shall be
calculated in accordance with the Torre Mayor Pooling Agreement.
"Appraisal Trigger Event": With respect to any Serviced Loan, any of
the following events:
(i) such Serviced Loan becomes a Modified Serviced Loan;
(ii) any Monthly Payment with respect to such Serviced Loan
remains unpaid for 60 days past the Due Date for such payment (or
for such shorter period at the end of which such delinquency will
become a Servicing Transfer Event); provided, however, solely in the
case of a delinquent Balloon Payment 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 Serviced Loan becomes
the subject of bankruptcy, insolvency or similar proceedings that
remain undischarged and undismissed;
(iv) the passage of 60 days after the Special Servicer
receives notice that a receiver or similar official is appointed
with respect to the related Mortgaged Property;
(v) the related Mortgaged Property becomes an REO Property, or
(vi) if a Serviced Loan has been extended three times, upon
the sixtieth day after the third extension.
"Appraised Value": With respect to any Mortgaged Property (other
than the Mortgaged Property related to a Non-Serviced Mortgage Loan) 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. With respect to the Mortgaged Property
related to a Non-Serviced Mortgage Loan, the appraised value shall be determined
pursuant to the related Non-Serviced Mortgage Loan Pooling Agreement.
"Approval Provisions": With respect to any Serviced Loan and the
provisions set forth in Section 3.21(e), the approvals and consents and the time
frames for such approvals and consents necessary in connection with the taking
of a Special Action or the extension of the maturity date of a Serviced Loan set
forth below (in each case subject to the limitations set forth in Section
3.21(e) and Section 3.21(f):
(i) with respect to any Performing Serviced Loan, the Master
Servicer shall obtain the approval or consent of the Special
Servicer in connection with a Special Action;
(ii) (A) with respect to any Non-Partitioned Loan that is a
Performing Serviced Loan that involves an extension of the maturity
date of such Loan or (B) in connection with a Special Action for any
Non-Partitioned Loan that is a Performing Serviced Loan, the Master
Servicer shall obtain the approval and consent of the Special
Servicer and the Special Servicer shall obtain the approval and
consent of the Directing Certificateholder;
(iii) with respect to any Non-Partitioned Loan that is a
Specially Serviced Loan, the Special Servicer shall obtain the
approval and consent of the Directing Certificateholder in
connection with a Special Action;
(iv) with respect to any Serviced Whole Loan, the Master
Servicer, if such Serviced Whole Loan is a then Performing Serviced
Loan, shall seek the approval and consent of the Special Servicer,
and the Special Servicer shall then obtain the approval and consent
of the related Controlling Holder in connection with a Special
Action; and
(v) with respect to any Serviced Whole Loan, the Special
Servicer, if such Serviced Whole Loan is a then Specially Serviced
Loan, shall obtain the approval and consent of the related
Controlling Holder in connection with a Special Action.
With respect to any extension or Special Action set forth in clauses
(ii) and (iv) above, the Special Servicer shall respond to the Master Servicer
in writing (which may be via e-mail or facsimile) of its decision to grant or
deny the Master Servicer's request for approval and consent within ten Business
Days of its receipt of such request and all information reasonably requested by
the Special Servicer, as such time frame may be extended if the Special Servicer
is required to seek the consent of the Directing Certificateholder, any
Controlling Holder or any Rating Agency. If the Special Servicer so fails to
respond to the Master Servicer within the time period referenced in the
immediately preceding sentence, such approval and consent shall be deemed
granted. With respect to any Special Action described in clauses (ii) and (iii)
above, the Directing Certificateholder shall respond to the Special Servicer
within ten Business Days of its receipt of such request in writing (which may be
via e-mail or facsimile) and such request will be deemed granted if the
Directing Certificateholder does not respond in such time frame. With respect to
any Special Action described in clauses (iv) and (v) above, the related
Controlling Holder shall respond in writing (which may be via e-mail or
facsimile) to the Special Servicer within ten Business Days of its receipt of a
request for its approval and consent, and such request will be deemed granted if
the required party does not respond in such time frame.
"ARD Loan": Any Mortgage Loan that provides for changes in payments
and accrual of interest, including the capture of Excess Interest from the
related mortgaged property and an increase in the applicable Mortgage Rate, if
it is not paid in full by the Anticipated Repayment Date. Each Mortgage Loan
that is an ARD Loan is identified on the Mortgage Schedule as such pursuant to
clause (xv) under the definition of Mortgage Loan Schedule.
"Asset Status Report": As defined in Section 3.21(d).
"Assignment of Leases": With respect to any Mortgaged Property, any
assignment of leases, rents and profits or similar document or instrument
executed by the Mortgagor in connection with the related Loan, as amended,
modified, renewed or extended through the date hereof and from time to time
hereafter.
"Assumed Monthly Payment": With respect to any Balloon Loan for its
Stated Maturity Date (provided that such Loan has not been paid in full, and no
other Liquidation Event has occurred in respect thereof, on or before the end of
the Collection Period in which such Stated Maturity Date occurs) and for any
subsequent Due Date on which such Serviced Loan remains outstanding and part of
the Trust Fund, if no Monthly Payment (other than a delinquent Balloon Payment)
is due for such Due Date, the scheduled monthly payment of principal and/or
interest deemed to be due in respect thereof on such Due Date equal to the
amount that would have been due in respect of such Serviced Loan on such Due
Date if it had been required to continue to accrue interest (exclusive, in the
case of an ARD Loan after its Anticipated Repayment Date, of Excess Interest) in
accordance with its terms, and to pay principal in accordance with the
amortization schedule (if any), in effect immediately prior to, and without
regard to the occurrence of, its most recent scheduled maturity date (as such
terms and amortization schedule may have been modified, and such maturity date
may have been extended, in connection with a bankruptcy or similar proceeding
involving the related Mortgagor or a modification, waiver or amendment of such
Serviced Loan granted or agreed to by the Master Servicer or Special Servicer
pursuant to Section 3.20). With respect to any REO Serviced Loan, for any Due
Date therefor as of which the related REO Property remains part of the Trust
Fund, the scheduled monthly payment of principal and/or interest deemed to be
due in respect thereof on such Due Date equal to the Monthly Payment that was
due (or, in the case of a Balloon Loan described in the preceding sentence of
this definition, the Assumed Monthly Payment that was deemed due) in respect of
the related Serviced Loan on the last Due Date prior to its becoming an REO
Serviced Loan.
"Available Distribution Amount": With respect to any Distribution
Date and each Mortgage Loan and, in the case of the KinderCare Portfolio Pari
Passu Note A-2 Mortgage Loan, the Desert Passage Pari Passu Note A-1 Mortgage
Loan and the Torre Mayor Pari Passu Note A-2 Mortgage Loan (other than with
respect to a P&I Advance required to be made by the Trustee), only to the extent
received by the Trustee pursuant to the related Intercreditor Agreement, an
amount equal to (a) the balance on deposit in the Certificate Account and the
Distribution Account as of the close of business on the related Determination
Date, including, without limitation, if and to the extent on deposit therein as
of such time, the Master Servicer Remittance Amount for the related Master
Servicer Remittance Date, any P&I Advances made by the Master Servicer or the
Trustee to cover uncollected Monthly Payments due and/or Assumed Monthly
Payments deemed due during the related Collection Period, any amounts received
from the KinderCare Portfolio Master Servicer in respect of the KinderCare
Portfolio Pari Passu Note A-2 Mortgage Loan pursuant to the KinderCare Portfolio
Pooling Agreement and/or the KinderCare Portfolio Intercreditor Agreement, any
amounts received from the Torre Mayor Master Servicer in respect of the Torre
Mayor Pari Passu Note A-2 Mortgage Loan pursuant to the Torre Mayor Pooling
Agreement and/or the Torre Mayor Intercreditor Agreement, 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, the related
Withheld Amounts remitted to the Torre Mayor Loan REMIC Distribution Account and
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 Torre Mayor Loan
REMIC Distribution Account or the REMIC I Distribution Account pursuant to any
of clauses (ii) through (vi) of Section 3.05(b), (vi) any amounts deposited into
the Torre Mayor Loan REMIC Distribution Account or the REMIC I Distribution
Account in error, (vii) all funds released from the Excess Liquidation Proceeds
Account with respect to such Distribution Date, (viii) any amounts payable or
reimbursable to any Person from the Certificate Account pursuant to clauses (ii)
through (xvii) of Section 3.05(a), and (ix) with respect to each Mortgage Loan
that accrues interest on an Actual/360 Basis and any Distribution Date relating
to the one-month period preceding the Distribution Date in each February (and in
any January of a year that is not a leap year), an amount equal to the related
Withheld Amount pursuant to Section 4.05; provided that the Available
Distribution Amount for the Final Distribution Date shall be calculated without
regard to clauses (b)(i), (b)(ii) and (b)(iii) of this definition.
"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).
"Barclays": Barclays Capital Real Estate Inc., and its successors in
interest.
"Base Interest Fraction" As defined in Section 4.01(c).
"Base Prospectus": That certain prospectus dated February 28, 2006,
relating to trust funds established by the Depositor and publicly offered
mortgage pass-through certificates evidencing interests therein.
"Book-Entry Certificate": Any Certificate registered in the name of
the Depository or its nominee.
"Borrower": Individually and collectively, as the context may
require, the obligor or obligors under a Loan, including any Person that has not
signed the related Mortgage Note but owns an interest in the related Mortgaged
Property, which interest has been encumbered to secure such Loan.
"Breach": With respect to any Mortgage Loan, any breach of
representation or warranty made by the 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 Ohio, Pennsylvania, New York, any city in which
the office of the Certificate Registrar is located or any city in which the
Corporate Trust Office of the Trustee or principal place of business of the
Master Servicer or Special Servicer is located are authorized or obligated by
law or executive order to remain closed; provided that for purposes of
administering (i) the Torre Mayor Pari Passu Note A-2 Mortgage Loan only, a day
on which banking institutions in Mexico are authorized or obligated by law or
executive order to remain closed shall not be a Business Day; and (ii) the
Cayman Islands Mortgage Loan only, a day on which banking institutions in the
Cayman Islands are authorized or obligated by law or executive order to remain
closed shall not be a Business Day.
"Cayman Collateral Trustee": HSBC Financial Services (Cayman)
Limited, in its capacity as collateral trustee with respect to the Mortgaged
Property securing the Cayman Islands Mortgage Loan, its successor in interest,
or any successor collateral trustee appointed as herein provided and in its
capacity as co-trustee with respect to the Cayman Islands Mortgage Loan.
"Cayman Islands Mortgage Loan": The Mortgage Loan identified as Loan
No. 20051383 in the Mortgage Loan Schedule.
"Cayman Islands Gross-Up Payment": As defined in Section 6(e) of the
Mortgage Loan Purchase and Sale Agreement, between Barclays and the Depositor.
"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 2006-1 as executed by the Trustee and
authenticated and delivered hereunder by the Certificate Registrar.
"Certificate Account": The segregated account or accounts created
and maintained by the Master Servicer pursuant to Section 3.04(a) on behalf of
the Trustee in trust for Certificateholders, which shall be entitled "Bank of
America, National Association, as Master Servicer, in trust for the registered
holders of Banc of America Commercial Mortgage Inc. Commercial Mortgage
Pass-Through Certificates, Series 2006-1, Certificate Account".
"Certificate Factor": With respect to any Class of REMIC II Regular
Certificates, as of any date of determination, a fraction, expressed as a
decimal carried to eight places, the numerator of which is the then related
Class Principal Balance or Class Notional Amount, as the case may be, and the
denominator of which is the related Initial Class Principal Balance or Initial
Class Notional Amount, as the case may be.
"Certificate Notional Amount": With respect to any Class 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, any Mortgage
Loan Seller, the Master Servicer, the Special Servicer, the REMIC Administrator
or the Trustee or any Affiliate of any of them shall be deemed not to be
outstanding, and the Voting Rights to which any of them is entitled shall not be
taken into account in determining whether the requisite percentage of Voting
Rights necessary to effect any such consent, approval or waiver has been
obtained, except as otherwise provided in Sections 7.04 and 12.01(b) or except
in connection with the Controlling Class exercising its rights under Section
3.23, or unless such Persons collectively own an entire Class of Certificates
and only the Holders of such Class of Certificates are entitled to grant such
consent, approval or waiver. The Certificate Registrar shall be entitled to
request and rely upon a certificate of the Depositor, the Master Servicer, the
Special Servicer or, if other than the Trustee, the REMIC Administrator, as the
case may be, in determining whether or not a Certificate is registered in the
name of an Affiliate of such Person. All references herein to "Holders" or
"Certificateholders" shall reflect the rights of Certificate Owners as they may
indirectly exercise such rights through the Depository and the Depository
Participants, except as otherwise specified herein; provided, however, that the
parties hereto shall be required to recognize as a "Holder" or
"Certificateholder" only the Person in whose name a Certificate is registered in
the Certificate Register.
"Certification Parties": As defined in Section 11.06.
"Certifying Person": As defined in Section 11,06.
"Certifying Servicer" means the Master Servicer, the Special
Servicer, the Trustee or an Additional Servicer, as the case may be.
"Class": Collectively, all of the Certificates bearing the same
alphabetical and, if applicable, numerical Class designation, and each REMIC I
Regular Interest and Corresponding Component.
"Class A Certificates": Any one of the Class A Senior Certificates
and the Class A Junior Certificates.
"Class A Junior Certificates": The Class A-M and Class A-J
Certificates.
"Class A Senior Certificate": Any one of the Class A-1, Class X-0,
Xxxxx X-0X, Xxxxx X-0X, Class A-SBFL, 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
5.2190%.
"Class A-1A Certificate": Any one of the Certificates with a "Class
A-1A" designation on the face thereof, substantially in the form of Exhibit A-7
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class A-1A Pass-Through Rate": A per annum rate equal to 5.3780%;
provided, however, that the Class A-1A Pass-Through Rate shall not exceed the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class A-2 Certificate": Any one of the Certificates with a "Class
A-2" designation on the face thereof, substantially in the form of Exhibit A-2
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class A-2 Pass-Through Rate": A fixed per annum rate equal to
5.3340%.
"Class A-3A Certificate": Any one of the Certificates with a "Class
A-3A" 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-3A Pass-Through Rate": A fixed per annum rate equal to
5.4470%.
"Class A-3B Certificate": Any one of the Certificates with a "Class
A-3B" 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-3B Pass-Through Rate": A fixed per annum rate equal to
5.4470%.
"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-6
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class A-4 Pass-Through Rate": A per annum rate equal to 5.3720%;
provided, however, that the Class A-4 Pass-Through Rate shall not exceed the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class A-SBFL Available Funds": With respect to any Distribution
Date, will equal the sum of (i) the total amount of all principal and/or
interest distributions on or in respect of the Class A-SBFL Regular Interest
with respect to such Distribution Date and (ii) the amounts, if any, received
from the Class A-SBFL Swap Counterparty pursuant to the Class A-SBFL Swap
Contract for such Distribution Date, less (iii) with respect to interest
distributions, all regularly scheduled fixed interest amounts (prior to the
termination of the Class A-SBFL Swap Contract or prior to the occurrence and
during the continuance of a Swap Default, exclusive of any Prepayment Premiums
allocated in respect of the Class A-SBFL Regular Interest) required to be paid
to the Class A-SBFL Swap Counterparty pursuant to the Class A-SBFL Swap Contract
for such Distribution Date.
"Class A-SBFL Certificate": Any one of the Certificates with a
"Class A-SBFL" 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-SBFL Distribution Conversion": With respect to any
Distribution Date (i) upon the occurrence and during the continuation of a Class
A-SBFL Swap Default of the nature described in clause (i) of the definition of
Class A-SBFL Swap Default while the Trustee on behalf of the Trust is pursuing
remedies under the Class A-SBFL Swap Contract pursuant to Section 3.32 or (ii)
immediately upon and following the termination of the Class A-SBFL Swap Contract
until a replacement Class A-SBFL Swap Contract is entered into, if any, the
conversion of distributions on the Class A-SBFL Certificates from distributions
based, in part, on floating interest payments from the Class A-SBFL Swap
Counterparty under the Class A-SBFL Swap Contract to distributions based solely
on fixed interest distributions in respect of the Class A-SBFL Regular Interest,
as specified in Section 4.01(l).
"Class A-SBFL Fixed Amount": The "Fixed Amount" as defined in the
Class A-SBFL Swap Contract.
"Class A-SBFL Fixed Swap Payment": With respect to any Distribution
Date, the Class A-SBFL Fixed Amount required to be paid to the Class A-SBFL Swap
Counterparty by the Trust under the Class A-SBFL Swap Contract.
"Class A-SBFL Floating Amount": The "Floating Amount" as defined in
the Class A-SBFL Swap Contract.
"Class A-SBFL Floating Rate Account": The trust account or accounts
created and maintained as a separate account or accounts (or as a subaccount of
the Distribution Account) by the Trustee pursuant to Section 3.04(h), 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 2006-1 Class A-SBFL Certificates,
Class A-SBFL Floating Rate Account," and which must be an Eligible Account (or a
subaccount of an Eligible Account). The Class A-SBFL Floating Rate Account shall
not be an asset of any of the Torre Mayor Loan REMIC, REMIC I or REMIC II formed
hereunder.
"Class A-SBFL Floating Swap Payment": With respect to any
Distribution Date, the Floating Amount required to be paid to the Trust by the
Class A-SBFL Swap Counterparty under the Class A-SBFL Swap Contract.
"Class A-SBFL Grantor Trust": That certain "grantor trust" (within
the meaning of the Grantor Trust Provisions), the assets of which are the A-SBFL
Grantor Trust Assets.
"Class A-SBFL Grantor Trust Assets": The segregated pool of assets
consisting of the A-SBFL Regular Interest, the Class A-SBFL Swap Contract, the
Class A-SBFL Floating Rate Account and the proceeds thereof, the beneficial
ownership of which is represented by the Class A-SBFL Certificates.
"Class A-SBFL Interest Distribution Amount": With respect to any
Distribution Date, an amount equal to the sum of (i) the Distributable
Certificate Interest received in respect of the Class A-SBFL Regular Interest
for such Distribution Date, (ii) the Class A-SBFL Floating Swap Payment and
(iii) any termination payment paid by the Class A-SBFL Swap Counterparty to the
Trustee upon the termination of the Class A-SBFL Swap Contract provided no
replacement Class A-SBFL Swap Contract has been entered into prior to such
Distribution Date, less (iv) the Class A-SBFL Net Swap Payment for such
Distribution Date.
"Class A-SBFL Net Swap Payment": With respect to the related
Interest Accrual Period, the excess, if any of (i) the Class A-SBFL Fixed Swap
Payment over (ii) the Class A-SBFL Floating Swap Payment.
"Class A-SBFL Pass-Through Rate": For any Distribution Date on which
a Class A-SBFL Distribution Conversion has not occurred and is not continuing, a
per annum rate equal to LIBOR plus 0.20% and (B) for any Distribution Date on
which a Class A-SBFL Distribution Conversion has occurred and is continuing,
5.3280% per annum.
"Class A-SBFL Planned Principal Amount": The planned principal
amount set forth on Annex C to the Prospectus Supplement relating to principal
payments for the Class A-SBFL Regular Interest.
"Class A-SBFL Principal Distribution Amount": With respect to any
Distribution Date, an amount equal to the amount of principal allocated pursuant
to Section 4.01 in respect of the Class A-SBFL Regular Interest on such
Distribution Date.
"Class A-SBFL Regular Interest": The uncertificated interest in
REMIC II, designated as "Class A-SBFL", constituting a "regular interest" in
REMIC II for purposes of the REMIC Provisions and having the characteristics
attributable thereto in this Agreement.
"Class A-SBFL Swap Contract": The 1992 ISDA Master Agreement
(Multi-Currency Cross Border) together with the related schedule, confirmation
and any annexes thereto, dated as of March 14, 2006, by and among the A-SBFL
Swap Counterparty and the Trustee, solely in its capacity as Trustee, on behalf
of the Trust, or any replacement interest rate swap agreement entered into by
the Trustee in accordance with this Agreement.
"Class A-SBFL Swap Counterparty": IXIS Financial Products Inc., a
Delaware corporation, acting in such capacity or its successor in interest or
any swap counterparty under a replacement Class A-SBFL Swap Contract.
"Class A-SBFL Swap Default": Any failure on the part of the Class
A-SBFL Swap Counterparty to (i) make a required payment under the Class A-SBFL
Swap Contract, as and when due thereunder, or (ii) either post acceptable
collateral or find an acceptable replacement swap counterparty after a Rating
Agency Trigger Event has occurred as required by Part 1, paragraph (k) of the
Schedule of the Master Agreement in the Class A-SBFL Swap Contract or any early
termination date as designated under the Class A-SBFL Swap Contract shall have
occurred.
"Class A-SBFL Swap Termination Fees": Any fees or expenses payable
by the Class A-SBFL Swap Counterparty to the Trust in connection with a Class
A-SBFL Swap Default, termination of the Class A-SBFL Swap Contract or
liquidation of the Class A-SBFL Swap Contract, as specified in the Class A-SBFL
Swap Contract.
"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-11
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class A-J Pass-Through Rate": A per annum rate equal to 5.4600%;
provided, however, that the Class A-J Pass-Through Rate shall not exceed the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class A-M Certificate": Any one of the Certificates with a "Class
A-M" designation on the face thereof, substantially in the form of Exhibit A-10
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class A-M Pass-Through Rate": A per annum rate equal to 5.4210%;
provided, however, that the Class A-M Pass-Through Rate shall not exceed the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class B Certificate": Any one of the Certificates with a "Class B"
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 B Pass-Through Rate": A per annum rate equal to 5.4900%;
provided, however, that the Class B Pass-Through Rate shall not exceed the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class C Certificate": Any one of the Certificates with a "Class C"
designation on the face thereof, substantially in the form of Exhibit A-13
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class C Pass-Through Rate": A per annum rate equal to 5.5090%;
provided, however, that the Class C Pass-Through Rate shall not exceed the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class D Certificate": Any one of the Certificates with a "Class D"
designation on the face thereof, substantially in the form of Exhibit A-14
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class D Pass-Through Rate": A per annum rate equal to the Weighted
Average Adjusted Net Mortgage Rate for the related Distribution Date less
0.134%.
"Class E Certificate": Any one of the Certificates with a "Class E"
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 E Pass-Through Rate": A per annum rate equal to the Weighted
Average Adjusted Net Mortgage Rate for the related Distribution Date less
0.046%.
"Class F Certificate": Any one of the Certificates with a "Class F"
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 F Pass-Through Rate": A per annum rate equal to the Weighted
Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class G Certificate": Any one of the Certificates with a "Class G"
designation on the face thereof, substantially in the form of Exhibit A-17
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class G Pass-Through Rate": A per annum rate equal to the Weighted
Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class H Certificate": Any one of the Certificates with a "Class H"
designation on the face thereof, substantially in the form of Exhibit A-18
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-19
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class J Pass-Through Rate": A per annum rate equal to the Weighted
Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class K Certificate": Any one of the Certificates with a "Class K"
designation on the face thereof, substantially in the form of Exhibit A-20
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 5.0450%;
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-21
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class LA-SBFL Regular Interests": Collectively, the REMIC I Regular
Interests designated as Class LA-SBFL-1, Class LA-SBFL-2, Class LA-SBFL-3 and
Class LA-SBFL-4.
"Class L Pass-Through Rate": A per annum rate equal to 5.0450%;
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-22
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 5.0450%;
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-23
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 5.0450%;
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-24
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 5.0450%;
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-25
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 5.0450%;
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 Q Certificate": Any one of the Certificates with a "Class Q"
designation on the face thereof, substantially in the form of Exhibit A-26
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class Q Pass-Through Rate": A per annum rate equal to 5.0450%;
provided, however, that the Class Q Pass-Through Rate shall not exceed the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class Principal Balance": The aggregate principal amount of any
Class of Principal Pay Certificates or the Class A-SBFL Regular Interest
outstanding as of any date of determination. As of the Closing Date, the Class
Principal Balance of each such Class of Certificates and the Class A-SBFL
Regular Interest shall equal the Initial Class Principal Balance thereof. On
each Distribution Date, the Class Principal Balance of each Class of Principal
Pay Certificates and the Class A-SBFL Regular Interest 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.
The Class Principal Balance of the Class A-SBFL Certificates shall be equal at
all times to the Class Principal Balance of the Class A-SBFL Regular Interest
"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-27
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-28
attached hereto, and evidencing the sole Class of "residual interest" in REMIC
II for purposes of the REMIC Provisions.
"Class R-TM Certificate": Any one of the Certificates with a "Class
R-TM" designation on the face thereof, substantially in the form of Exhibit A-29
attached hereto, and evidencing the Torre Mayor Loan REMIC Residual Interest 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-30
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-8
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, 0.0447% 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-9
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class XP Component Crossover Date": With respect to each Class XP
Component, the related Class XP Crossover Date as set forth in the table below:
Class XP Component Class XP Component Crossover Date
XA-1-2 and XA-1A-2 September 2006 Distribution Date
XA-1-3 and XA-1A-3 March 2007 Distribution Date
XA-1-4, XA-1A-4 and XA-2-1 September 2007 Distribution Date
XX-0X-0, XX-0-0, XX-0 and XM March 2008 Distribution Date
XA-1A-6, XA-2-3, XJ-1, XK and XL-2 September 2008 Distribution Date
XX-0X-0, XX-0-0, XX-0X-0 and XJ-2 March 2009 Distribution Date
XX-0X-0, XX-0X-0, XX-0 and XJ-3 September 2009 Distribution Date
XX-0X-0, XX-0X-0, XX-0X, March 2010 Distribution Date
XA-SBFL-1, XG-1 and XX-0
XX-0X-00, XX-XXXX-0 and XG-2 September 2010 Distribution Date
XX-0X-00, XX-XXXX-0, XX-0 and XG-3 March 2011 Distribution Date
XX-0X-00, XX-XXXX-0, XX-0-0 and September 2011Distribution Date
XX-0
XX-0X-00, XX-0-0, XX-0 and XF-3 March 2012 Distribution Date
XA-1A-14, XA-4-3 and XE-2 September 2012 Distribution Date
XX-0X-00, XX-0-0, XX-X, XX-X, XB, March 2013 Distribution Date
XC, XD and XE-3
"Class XP Components": 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, 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 XX-0X-00, Xxxxxxxxx XX-0X-00, Xxxxxxxxx XX-0X-00, Xxxxxxxxx XX-0-0,
Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0, Component XX-0X-0,
Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X, Component XA-SBFL-1,
Component XA-SBFL-2, Component XA-SBFL-3, Component XA-SBFL-4, Component XA-4-1,
Component XA-4-2, Component XA-4-3, Component XA-4-4, Component XA-M, Component
XA-J, Component XB, Component XC, Component XD, Component XE-1, Component XE-2,
Component XE-3, Component XF-1, Component XF-2, Component XF-3, Component XG-1,
Component XG-2, Component XG-3, Component XH-1, Component XH-2, Component XJ-1,
Component XJ-2, Component XJ-3, Component XK, Component XL-1, Component XL-2 and
Component XM.
"Class XP (Class D) Fixed Strip Rate": The applicable Class XP Strip
Rate with respect to the Class D Certificates, 0.1040%.
"Class XP (Class E) Fixed Strip Rate": The applicable Class XP Strip
Rate with respect to the Class E Certificates, 0.0160%.
"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 Crossover Date has previously passed.
"Class XP Pass-Through Rate": With respect to the initial
Distribution Date, 0.3406% 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, (w) with respect to Component XD, the Class XP (Class D) Fixed
Strip Rate, (x) with respect to Component XE, the Class XP (Class E) 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": March 14, 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, placement agents and
underwriters generally involved in the commercial mortgage loan securitization
industry that is the principal such association or organization in the
commercial mortgage loan securitization industry and one of whose principal
purposes is the establishment of industry standards for reporting
transaction-specific information relating to commercial mortgage pass-through
certificates and commercial mortgage-backed bonds and the commercial mortgage
loans and foreclosed properties underlying or backing them to investors holding
or owning such certificates or bonds, and any successor to such other
association or organization. If an organization or association described in one
of the preceding sentences of this definition does not exist, "CMSA" shall be
deemed to refer to such other association or organization as shall be selected
by the Master Servicer and reasonably acceptable to the Trustee, the Special
Servicer and the Directing Certificateholder.
"CMSA Advance Recovery Report": The monthly report substantially in
the form of, and containing the information called for in, the downloadable form
of the "Advance Recovery Report" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be approved by
the CMSA for commercial mortgage securities transactions generally and, insofar
as it requires the presentation of information in addition to that called for by
the form of the "Advance Recovery Report" available as of the Closing Date on
the CMSA Website, is reasonably acceptable to the Trustee.
"CMSA Bond Level File": The monthly report substantially in the form
of, and containing the information called for in, the downloadable form of the
"Bond Level File" available as of the Closing Date on the CMSA Website, or such
other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage securities transactions generally and is reasonably
acceptable to the Trustee.
"CMSA Collateral Summary File": The report substantially in the form
of, and containing the information called for in, the downloadable form of the
"Collateral Summary File" available as of the Closing Date on the CMSA Website,
or such other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage securities transactions generally and is reasonably
acceptable to the Trustee.
"CMSA Comparative Financial Status Report": A report substantially
in the form of, and containing the information called for in, the downloadable
form of the "Comparative Financial Status Report" available as of the Closing
Date on the CMSA Website, or such other form for the presentation of such
information as may from time to time be recommended by the CMSA for commercial
mortgage securities transactions generally and is reasonably acceptable to the
Master Servicer and the Special Servicer.
"CMSA Delinquent Loan Status Report": A report substantially in the
form of, and containing the information called for in, the downloadable form of
the "Delinquent Loan Status Report" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage securities transactions generally and is
reasonably acceptable to the Master Servicer and the Special Servicer.
"CMSA Financial File": A report substantially in the form of, and
containing the information called for in, the downloadable form of the
"Financial File" available as of the Closing Date on the CMSA Website, or such
other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage securities transactions generally and is reasonably
acceptable to the Master Servicer.
"CMSA Historical Liquidation Report": A report substantially in the
form of, and containing the information called for in, the downloadable form of
the "Historical Liquidation Report" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage securities transactions generally and is
reasonably acceptable to the Master Servicer and the Special Servicer.
"CMSA Historical Loan Modification and Corrected Mortgage Loan
Report": A report substantially in the form of, and containing the information
called for in, the downloadable form of the "Historical Loan Modification and
Corrected Mortgage Loan Report" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage securities transactions generally and is
reasonably acceptable to the Master Servicer and the Special Servicer.
"CMSA Investor Reporting Package": Collectively refers to:
(a) the following seven electronic files: (i) CMSA Bond Level File,
(ii) CMSA Collateral Summary File, (iii) CMSA Property File, (iv) CMSA
Loan Periodic Update File, (v) CMSA Loan Setup File, (vi) CMSA Financial
File, and (vii) CMSA Special Servicer Loan File;
(b) the following nine supplemental reports: (i) CMSA Comparative
Financial Status Report, (ii) CMSA Delinquent Loan Status Report, (iii)
CMSA Historical Loan Modification and Corrected Mortgage Loan Report, (iv)
CMSA Historical Liquidation Report, (v) CMSA Operating Statement Analysis
Report, (vi) CMSA NOI Adjustment Worksheet, (vii) CMSA REO Status Report,
(viii) CMSA Servicer Watch List, and (ix) CMSA Loan Level Reserve - LOC
Report;
(c) the CMSA Advance Recoverability Report; and
(d) such other reports as CMSA may designate as part of the CMSA
Investor Reporting Package that are reasonably acceptable to the Master
Servicer, Special Servicer or Trustee, as applicable.
"CMSA Loan Level Reserve-LOC Report": The monthly report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Loan Level Reserve LOC Report" available as of the
Closing Date on the CMSA Website, or such other form for the presentation of
such information and containing such additional information as may from time to
time be recommended by the CMSA for commercial mortgage securities transactions
generally and is reasonably acceptable to the Master Servicer.
"CMSA Loan Periodic Update File": The monthly report substantially
in the form of, and containing the information called for in, the downloadable
form of the "Loan Periodic Update File" available as of the Closing Date on the
CMSA Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage securities transactions generally and is
reasonably acceptable to the Master Servicer, the Special Servicer and the
Trustee.
"CMSA Loan Setup File": The report substantially in the form of, and
containing the information called for in, the downloadable form of the "Loan
Setup File" available as of the Closing Date on the CMSA Website, or such other
form for the presentation of such information and containing such additional
information as may from time to time be recommended by the CMSA for commercial
mortgage securities transactions generally and is reasonably acceptable to the
Master Servicer, the Special Servicer and the Trustee.
"CMSA NOI Adjustment Worksheet": A report substantially in the form
of, and containing the information called for in, the downloadable form of the
"NOI Adjustment Worksheet" available as of the Closing Date on the CMSA Website,
or such other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage securities transactions generally and is acceptable to the
Master Servicer or the Special Servicer, as applicable, and in any event, shall
present the computations made in accordance with the methodology described in
such form to "normalize" the full year net operating income and debt service
coverage numbers used in the other reports required by this Agreement.
"CMSA Operating Statement Analysis Report": A report substantially
in the form of, and containing the information called for in, the downloadable
form of the "Operating Statement Analysis Report" available as of the Closing
Date on the CMSA Website or in such other form for the presentation of such
information and containing such additional information as may from time to time
be recommended by the CMSA for commercial mortgage-backed securities
transactions generally and is reasonably acceptable to the Master Servicer.
"CMSA Property File": A report substantially in the form of, and
containing the information called for in, the downloadable form of the "Property
File" available as of the Closing Date on the CMSA Website, or such other form
for the presentation of such information and containing such additional
information as may from time to time be recommended by the CMSA for commercial
mortgage securities transactions generally and is reasonably acceptable to the
Master Servicer and the Special Servicer.
"CMSA Reconciliation of Funds Report": The report substantially in
the form of, and containing the information called for in, the downloadable form
of the "Reconciliation of Funds Report" available as of the Closing Date on the
CMSA Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage securities transactions generally and is
reasonably acceptable to the Trustee.
"CMSA REO Status Report": A report substantially in the form of, and
containing the information called for in, the downloadable form of the "REO
Status Report" available as of the Closing Date on the CMSA Website, or in such
other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage securities transactions generally and is reasonably
acceptable to the Special Servicer.
"CMSA Servicer Watch List": For any Determination Date, a report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Servicer Watch List" available as of the Closing Date
on the CMSA Website, or in such other final form for the presentation of such
information and containing such additional information as may from time to time
be promulgated as recommended by the CMSA for commercial mortgage securities
transactions generally and, insofar as it requires the presentation of
information in addition to that called for by the form of the "Servicer Watch
List" available as of the Closing Date on the CMSA Website, is reasonably
acceptable to the Master Servicer or the Special Servicer, as applicable.
"CMSA Special Servicer Loan File": The monthly report substantially
in the form of, and containing the information called for in, the downloadable
form of the "Special Servicer Loan File" available as of the Closing Date on the
CMSA Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage securities transactions generally and is
reasonably acceptable to the Special Servicer.
"CMSA Website": The CMSA's Website located at "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 Loans": Collectively, the KinderCare Portfolio Pari Passu
Note A-1, the KinderCare Portfolio Pari Passu Note A-3, the Desert Passage Pari
Passu Note A-2, the Desert Passage Pari Passu Note A-3, the Torre Mayor Pari
Passu Note A-1, the Torre Mayor Note B and the Torre Mayor Note C.
"Companion Loan Holder": With respect to (i) the KinderCare
Portfolio Pari Passu Note A-1, the KinderCare Portfolio Pari Passu Note A-1
Holder, (ii) the KinderCare Portfolio Pari Passu Note A-3, the KinderCare
Portfolio Pari Passu Note A-3 Holder, (iii) the Desert Passage Pari Passu Note
A-2, the Desert Passage Pari Passu Note A-2 Holder (iv) the Desert Passage Pari
Passu Note A-3, the Desert Passage Pari Passu Note A-3 Holder, (v) the Torre
Mayor Pari Passu Note A-1, the Torre Mayor Pari Passu Note A-1 Holder, (vi) the
Torre Mayor Note B, the Torre Mayor Note B Holder, and (vii) the Torre Mayor
Note C, the Torre Mayor Note C Holder.
"Compensating Interest Payment": With respect to any Distribution
Date, any payment made by the Master Servicer pursuant to Section 3.19(e) to
cover any Balloon Payment Interest Shortfall and Prepayment Interest Shortfalls
incurred during the related Collection Period.
"Component": Each of Component XX-0-0, Xxxxxxxxx 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 XX-0X-00, Xxxxxxxxx XX-0X-00, Xxxxxxxxx
XX-0X-00, Xxxxxxxxx XX-0-0, Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx
XX-0-0, Component XX-0X-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx
XX-0X, Component XA-SBFL-1, Component XA-SBFL-2, Component XA-SBFL-3, Component
XA-SBFL-4, Component XA-4-1, Component XA-4-2, Component XA-4-3, Component
XA-4-4, Component XA-M, Component XA-J, Component XB, Component XC, Component
XD, Component XE-1, Component XE-2, Component XE-3, Component XF-1, Component
XF-2, Component XF-3, Component XG-1, Component XG-2, Component XG-3, Component
XH-1, Component XH-2, Component XJ-1, Component XJ-2, Component XJ-3, Component
XK, Component XL-1, Component XL-2, Component XM, Component XN, Component XO,
Component XP and Component XQ.
"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 62 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 62 components of the Class XC
Certificates and one of the 56 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 62 components of the Class XC
Certificates and one of the 56 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-1-3 as of any date of determination.
"Component XA-1-4": One of the 62 components of the Class XC
Certificates and one of the 56 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LA-1-4 as of any date of determination.
"Component XA-1A-1": One of the 62 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 62 components of the Class XC
Certificates and one of the 56 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 62 components of the Class XC
Certificates and one of the 56 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 62 components of the Class XC
Certificates and one of the 56 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 62 components of the Class XC
Certificates and one of the 56 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 62 components of the Class XC
Certificates and one of the 56 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 62 components of the Class XC
Certificates and one of the 56 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 62 components of the Class XC
Certificates and one of the 56 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 62 components of the Class XC
Certificates and one of the 56 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 62 components of the Class XC
Certificates and one of the 56 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 62 components of the Class XC
Certificates and one of the 56 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 62 components of the Class XC
Certificates and one of the 56 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 62 components of the Class XC
Certificates and one of the 56 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 62 components of the Class XC
Certificates and one of the 56 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-14": One of the 62 components of the Class XC
Certificates and one of the 56 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 62 components of the Class XC
Certificates and one of the 56 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 62 components of the Class XC
Certificates and one of the 56 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 62 components of the Class XC
Certificates and one of the 56 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 62 components of the Class XC
Certificates and one of the 56 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-3A-1": One of the 62 components of the Class XC
Certificates and one of the 56 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-3A-1 as of any date of determination.
"Component XA-3A-2": One of the 62 components of the Class XC
Certificates and one of the 56 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-3A-2 as of any date of determination.
"Component XA-3A-3": One of the 62 components of the Class XC
Certificates and one of the 56 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-3A-3 as of any date of determination.
"Component XA-3B": One of the 62 components of the Class XC
Certificates and one of the 56 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-3B as of any date of determination.
"Component XA-SBFL-1": One of the 62 components of the Class XC
Certificates and one of the 56 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-SBFL-1 as of any date of determination.
"Component XA-SBFL-2": One of the 62 components of the Class XC
Certificates and one of the 56 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-SBFL-2 as of any date of determination.
"Component XA-SBFL-3": One of the 62 components of the Class XC
Certificates and one of the 56 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-SBFL-3 as of any date of determination.
"Component XA-SBFL-4": One of the 62 components of the Class XC
Certificates and one of the 56 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-SBFL-4 as of any date of determination.
"Component XA-4-1": One of the 62 components of the Class XC
Certificates and one of the 56 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 62 components of the Class XC
Certificates and one of the 56 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-4-3": One of the 62 components of the Class XC
Certificates and one of the 56 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-4-3 as of any date of determination.
"Component XA-4-4": One of the 62 components of the Class XC
Certificates and one of the 56 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-4-4 as of any date of determination.
"Component XA-J": One of the 62 components of the Class XC
Certificates and one of the 56 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 62 components of the Class XC
Certificates and one of the 56 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 62 components of the Class XC
Certificates and one of the 56 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LB as of any date of determination.
"Component XC": One of the 62 components of the Class XC
Certificates and one of the 56 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LC as of any date of determination.
"Component XD": One of the 62 components of the Class XC
Certificates and one of the 56 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 as of any date of determination.
"Component XE-1": One of the 62 components of the Class XC
Certificates and one of the 56 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 62 components of the Class XC
Certificates and one of the 56 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 62 components of the Class XC
Certificates and one of the 56 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 62 components of the Class XC
Certificates and one of the 56 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 62 components of the Class XC
Certificates and one of the 56 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LF-2 as of any date of determination.
"Component XF-3": One of the 62 components of the Class XC
Certificates and one of the 56 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LF-3 as of any date of determination.
"Component XG-1": One of the 62 components of the Class XC
Certificates and one of the 56 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 62 components of the Class XC
Certificates and one of the 56 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 XG-3": One of the 62 components of the Class XC
Certificates and one of the 56 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-3 as of any date of determination.
"Component XH-1": One of the 62 components of the Class XC
Certificates and one of the 56 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 62 components of the Class XC
Certificates and one of the 56 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 62 components of the Class XC
Certificates and one of the 56 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 62 components of the Class XC
Certificates and one of the 56 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 XJ-3": One of the 62 components of the Class XC
Certificates and one of the 56 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-3 as of any date of determination.
"Component XK": One of the 62 components of the Class XC
Certificates and one of the 56 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LK as of any date of determination.
"Component XL-1": One of the 62 components of the Class XC
Certificates and one of the 56 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LL-1 as of any date of determination.
"Component XL-2": One of the 62 components of the Class XC
Certificates and one of the 56 components of the Class XP Certificates having a
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LL-2 as of any date of determination.
"Component XM": One of the 62 components of the Class XC
Certificates and one of the 56 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 LM as of any date of determination.
"Component XN": One of the 62 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 62 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 62 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.
"Component XQ": One of the 62 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 LQ 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 (in the case of a Non-Serviced Mortgage Loan, to the extent of any
portion of such amounts received by the Master Servicer or Special Servicer
pursuant to the related Intercreditor Agreement), exclusive of any portion
thereof required to be released to the related Mortgagor or any other
third-party in accordance with applicable law and/or the terms and conditions of
the related loan documents or any other applicable document.
"Confidential Information": As defined in Section 3.24.
"Control Appraisal Period": With respect to (i) KinderCare Portfolio
Whole Loan, the KinderCare Portfolio Control Appraisal Period, and (ii) the
Torre Mayor Whole Loan, the Torre Mayor Control Appraisal Period.
"Controlling Class": As of any date of determination, the
outstanding Class of Sequential Pay Certificates with the lowest Payment
Priority (the Class A Senior Certificates being treated as a single Class for
this purpose) that has a then outstanding Class Principal Balance at least equal
to 25% of the Initial Class Principal Balance thereof (or, if no Class of
Sequential Pay Certificates has a Class Principal Balance at least equal to 25%
of the Initial Class Principal Balance thereof, then the "Controlling Class"
shall be the outstanding Class of Sequential Pay Certificates with the then
largest outstanding Class Principal Balance).
"Controlling Class Certificateholders": Each Holder (or Certificate
Owner, if applicable) of a Certificate of the Controlling Class as certified to
the Trustee from time to time by such Holder (or Certificate Owner).
"Controlling Class Optionholder": The Purchase Option held by the
Majority Certificateholder of the Controlling Class pursuant to Section 3.18(c).
"Controlling Holder": With respect to (i) the KinderCare Portfolio
Whole Loan, the KinderCare Portfolio Controlling Holder, (ii) the Desert Passage
Whole Loan, the Desert Passage Controlling Holder, and (iii) the Torre Mayor
Whole Loan, the Torre Mayor Controlling Holder. Each such initial Controlling
Holder and, if applicable, the related Operating Advisor shall be set forth on
Schedule VII hereto.
"Corporate Trust Office": The principal corporate trust office of
the Trustee, for purposes of Certificate transfer services, at the date of the
execution of this Agreement is located at (i) with respect to maintenance of the
Certificate Register and the transfer and exchange of Certificates, the office
of the Trustee located at Xxxxx Fargo Center, Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx,
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000, Corporate Trust Services (CMBS) BACM 2006-1,
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
2006-1, and with respect to any successor Trustee, the principal office thereof
as designated in writing to the Depositor.
"Corrected Serviced Loan": Any Serviced Loan that had been a
Specially Serviced Loan but as to which all Servicing Transfer Events have
ceased to exist other than in connection with a sale pursuant to Section 3.18.
"Corresponding Certificate": As defined in the Preliminary Statement
with respect to any Corresponding Component or any Corresponding REMIC I Regular
Interest.
"Corresponding Component": As defined in the Preliminary Statement
with respect to any Corresponding Certificate or any Corresponding REMIC I
Regular Interest.
"Corresponding REMIC I Regular Interest": As defined in the
Preliminary Statement with respect to any Corresponding Certificate or any
Corresponding Component.
"Covered Risks": As defined in Section 3.07(a).
"CPR": As defined in the Base Prospectus.
"Cross-Collateralized Group": Any group of Loans that is
cross-defaulted and cross-collateralized with each other.
"Cross-Collateralized Mortgage Loan": Any Loan that is, by its
terms, cross-defaulted and cross-collateralized with any other Loan.
"Current Principal Distribution Amount": With respect to any
Distribution Date, an amount (calculated in accordance with Section 1.03) equal
to the aggregate of, without duplication:
(a) the principal portions of all Monthly Payments (other than
Balloon Payments) and any Assumed Monthly Payments due or deemed due, as
the case may be, made by or on behalf of the related borrower or advanced
in respect of the Mortgage Loans in the Mortgage Pool or in such Loan
Group, as applicable, and any REO Serviced Loans for their respective Due
Dates occurring during the related Collection Period or any prior
Collection Period (if not previously distributed);
(b) all Principal Prepayments received on the Mortgage Loans in the
Mortgage Pool or in such Loan Group, as applicable, during the related
Collection Period;
(c) with respect to any Balloon Loan that is included in the
Mortgage Pool or in such Loan Group, as applicable, as to which the
related Stated Maturity Date occurred during or prior to the related
Collection Period, any payment of principal (exclusive of any Principal
Prepayment and any amount described in subclause (d) below) that was made
by or on behalf of the related Mortgagor during the related Collection
Period, net of any portion of such payment that represents a recovery of
the principal portion of any Monthly Payment (other than a Balloon
Payment) due, or the principal portion of any Assumed Monthly Payment
deemed due, in respect of such Balloon Loan on a Due Date during or prior
to the related Collection Period and not previously recovered;
(d) all Liquidation Proceeds (net of Liquidation Expenses),
Insurance Proceeds, Condemnation Proceeds and REO Revenues 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 3.06(f) 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, Condemnation Proceeds and REO Revenues received on or
in respect of any REO Properties during the related Collection Period that
were identified and applied by the Master Servicer as recoveries of
principal of the related REO Serviced Loans, in each case net of any
portion of such amounts that represents a recovery of the principal
portion of any Monthly Payment (other than a Balloon Payment) due, or of
the principal portion of any Assumed Monthly Payment deemed due, in
respect of any such REO Serviced Loan or the predecessor Mortgage Loan on
a Due Date during or prior to the related Collection Period and not
previously recovered.
"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": March 1, 2006.
"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 Serviced Loan.
"Default Interest": With respect to any Loan (or successor REO
Serviced Loan), any amounts collected thereon, other than late payment charges
or Prepayment Premiums, that represent interest in excess of interest accrued on
the principal balance of such Loan (or REO Serviced Loan) at the related
Mortgage Rate, such excess interest arising out of a default under such Loan.
"Defaulted Serviced Loan": A Serviced Loan (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 Serviced Loan will
immediately become a Defaulted Serviced Loan), in either case such delinquency
to be determined without giving effect to any grace period permitted by the
related Mortgage or Mortgage Note and without regard to any acceleration of
payments under the related Mortgage and Mortgage Note, or (iii) as to which the
Master Servicer or Special Servicer has, by written notice to the related
Mortgagor, accelerated the maturity of the indebtedness evidenced by the related
Mortgage Note.
"Defaulting Party": As defined in Section 7.01(b).
"Defective Mortgage Loan": Any Mortgage Loan as to which there
exists a Material Breach or a Material Document Defect that was not cured in all
material respects.
"Definitive Certificate": As defined in Section 5.03(a).
"Deleted Mortgage Loan": A Defective Mortgage Loan that is
repurchased from the Trust or replaced with one or more Replacement Mortgage
Loans, in either case as contemplated by Section 2.03.
"Denomination": As defined in Section 5.01(a).
"Depositor": Banc of America Commercial Mortgage Inc., or its
successor in interest.
"Depository": The Depository Trust Company, or any successor
Depository hereafter named. The nominee of the initial Depository for purposes
of registering those Certificates that are to be Book-Entry Certificates, is
Cede & Co. The Depository shall at all times be a "clearing corporation" as
defined in Section 8-102(3) of the Uniform Commercial Code of the State of New
York and a "clearing agency" registered pursuant to the provisions of Section
17A of the Exchange Act.
"Depository Participant": A broker, dealer, bank or other financial
institution or other Person for whom from time to time the Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
"Depository Rules": As defined in Section 5.02(b).
"Desert Passage Controlling Holder": The Desert Passage Noteholders
acting in their collective capacity pursuant to Section 2(h) of the Desert
Passage Intercreditor Agreement.
"Desert Passage Intercreditor Agreement": With respect to the Desert
Passage Whole Loan, the Agreement Among Noteholders dated as of March 1, 2006 by
and between the holder of the Desert Passage Mortgage Loan, the Desert Passage
Pari Passu Note A-2 Holder and the Desert Passage Pari Passu Note A-3 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.
"Desert Passage Mezzanine Intercreditor Agreement": That certain
Amended and Restated Intercreditor Agreement, dated as of February 27, 2006, by
and between Bank of America, National Association as "Senior Lender" and the
Desert Passage Mezzanine Loan Holder as "Mezzanine Lender".
"Desert Passage Mezzanine Loan": That certain mezzanine loan related
to the Desert Passage Mortgage Loan, which is evidenced by that certain
Mezzanine Loan Agreement, dated as of October 4, 2005, by and between Desert
Passage Mezz, LLC and the Desert Passage Mezzanine Loan Holder.
"Desert Passage Mezzanine Loan Holder": Bank of America, National
Association, and its permitted successors or assigns.
"Desert Passage Mortgage Loan": The Mortgage Loan identified as Loan
No. 59264 in the Mortgage Loan Schedule, which, together with the Desert Passage
Pari Passu Note A-2 and the Desert Passage Pari Passu Note A-3, is secured by a
Mortgage on the Desert Passage Mortgaged Property.
"Desert Passage Mortgaged Property": The property that secures the
Desert Passage Whole Loan.
"Desert Passage Noteholders": The holder of the Mortgage Note for
the Desert Passage Mortgage Loan, the Desert Passage Pari Passu Note A-2 Holder
and the Desert Passage Pari Passu Note A-3 Holder.
"Desert Passage Pari Passu Note A-1": With respect to the Desert
Passage Mortgage Loan, the related Mortgage Note that is included in the Trust
Fund.
"Desert Passage Pari Passu Note A-2": The Mortgage Note related to
the Desert Passage Whole Loan that is not included in the Trust, which is pari
passu in right of payment to the Desert Passage Pari Passu Note A-1 and the
Desert Passage Pari Passu Note A-3 to the extent set forth in the Desert Passage
Intercreditor Agreement.
"Desert Passage Pari Passu Note A-2 Holder": The holder of the
Desert Passage Pari Passu Note A-2.
"Desert Passage Pari Passu Note A-3": The Mortgage Note related to
the Desert Passage Whole Loan that is not included in the Trust, which is pari
passu in right of payment to the Desert Passage Pari Passu Note A-1 and the
Desert Passage Pari Passu Note A-2 to the extent set forth in the Desert Passage
Intercreditor Agreement.
"Desert Passage Pari Passu Note A-3 Holder": The holder of the
Desert Passage Pari Passu Note A-3.
"Desert Passage Whole Loan": The Desert Passage Mortgage Loan
together with the Desert Passage Pari Passu Note A-2 and the Desert Passage Pari
Passu Note A-3. References herein to the Desert Passage Whole Loan shall be
construed to refer to the aggregate indebtedness under the Desert Passage Pari
Passu Note A-1, the Desert Passage Pari Passu Note A-2 and the Desert Passage
Pari Passu Note A-3.
"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 Anthracite Capital, Inc.
"Directly Operate": With respect to any REO Property (other than any
REO Property related to a Non-Serviced Mortgage Loan), the furnishing or
rendering of services to the tenants thereof, the management or operation of
such REO Property, the holding of such REO Property primarily for sale to
customers (other than the sale of an REO Property pursuant to Section 3.18, the
performance of any construction work thereon or any use of such REO Property in
a trade or business conducted by REMIC I or the Torre Mayor Loan REMIC, as
applicable, 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, Class
R-II or Class R-TM Certificate, any Non-U.S. Person or agent thereof other than
(i) a Non-U.S. Person that holds the Class R-I, Class R-II or Class R-TM
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, Class R-II or Class R-TM 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, Class R-II or Class R-TM 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 (other than the Class
A-SBFL Certificates) and the Class A-SBFL Regular Interest, the Accrued
Certificate Interest in respect of such Class of Certificates or Class A-SBFL
Regular Interest 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 or Class A-SBFL
Regular Interest as set forth below. The Net Aggregate Prepayment Interest
Shortfall, if any, for each Distribution Date shall be allocated, pro rata, to
each Class of REMIC II Regular Certificates and the Class A-SBFL Regular
Interest based on Accrued Certificate Interest for each such Class of
Certificates or Class A-SBFL Regular Interest 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 2006-1, Distribution
Account".
"Distribution Date": The tenth day of any month, or if such tenth
day is not a Business Day, the Business Day immediately following, commencing in
April 2006.
"Distribution Date Statement": As defined in Section 4.02(a).
"Document Defect": With respect to any Mortgage Loan, any document
required to be part of the related Mortgage File that has not been properly
executed, is missing, contains information that does not conform in any material
respect with the corresponding information set forth in the Mortgage Loan
Schedule (and the terms of such document have not been modified by written
instrument contained in the related Mortgage File), or does not appear to be
regular on its face.
"Domestic Global Certificate": Any of the single, permanent global
certificates that represents the Certificates sold in reliance on Rule 144A.
"DTC": As defined in Section 5.03(d).
"Due Date": With respect to (i) any Loan on or prior to its Stated
Maturity Date, the day of the month set forth in the related Mortgage Note on
which each Monthly Payment on such Loan is scheduled to be first due; (ii) any
Loan after its Stated Maturity Date, the day of the month set forth in the
related Mortgage Note on which each Monthly Payment on such Loan had been
scheduled to be first due; and (iii) any REO Serviced Loan, the day of the month
set forth in the related Mortgage Note on which each Monthly Payment on the
related Loan had been scheduled to be first due.
"Eligible Account": Any of (i) an account maintained with a federal
or state chartered depository institution or trust company, including, without
limitation, the Trustee (if it meets the following rating criteria), the
long-term unsecured debt obligations of which are rated no less than "Aa3" by
Moody's and "AA-" by S&P (or "A-" by S&P if such depository's short-term
unsecured debt rating is no less than "A-1" by S&P) (if the deposits are to be
held in the account for more than 30 days) (or if such account is maintained
with PNC Bank, National Association, or KeyBank National Association rated no
less than "A" by Moody's and with respect to S&P meets the requirements set
forth in clause (i)), or the short-term unsecured debt obligations of which are
rated no less than "P-1" by Moody's and "A-1" by S&P (if the deposits are to be
held in the account for 30 days or less), in each case, at any time funds are on
deposit therein, (ii) a segregated trust account or accounts maintained with the
corporate trust department of a federally chartered depository institution or
trust company, including, without limitation, the Trustee, acting in its
fiduciary capacity and subject to the regulations regarding fiduciary funds on
deposit therein under 12 C.F.R. ss.9.10(b) that has a combined capital surplus
of at least $50,000,000, (iii) a segregated trust account or accounts maintained
with the corporate trust department of a state chartered depository institution
or trust company, including, without limitation, the Trustee, acting in its
fiduciary capacity and subject to regulations regarding fiduciary funds on
deposit therein substantially similar to 12 C.F.R. ss.9.10(b) that has a
combined capital surplus of at least $50,000,000, or (iv) any other account that
would not result in the downgrade, qualification (if applicable) or withdrawal
of the rating then assigned by either Rating Agency to any Class of Certificates
or Serviced Companion Loan Securities (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., in
trust for the registered Holders of Banc of America Commercial Mortgage, Inc.
Commercial Mortgage Pass-Through Certificates, Series 2006-1, Excess Interest
Distribution Account", and which must be an Eligible Account. The Excess
Interest Distribution Account shall not be an asset of the Torre Mayor Loan
REMIC, REMIC I or REMIC II formed hereunder.
"Excess Interest Grantor Trust": A segregated asset pool within the
Trust Fund consisting of (i) the Excess Interest and (ii) the Excess Interest
Distribution Account and all funds and assets held from time to time on deposit
in the Excess Interest Distribution Account.
"Excess Interest Rate": With respect to any ARD Loan after its
Anticipated Repayment Date, the incremental increase in the Mortgage Rate for
such Loan resulting from the passage of such Anticipated Repayment Date.
"Excess Liquidation Proceeds": An amount equal to the excess, if
any, of (a) the Net Liquidation Proceeds from the sale or liquidation of a
Specially Serviced Loan or REO Property, over (b) the sum of: (i) the amount
needed to pay off the Loan or related REO Serviced Loan in full, including any
related Workout-Delayed Reimbursement Amounts, (ii) all unpaid Advances and any
unpaid Advance Interest thereon and any unpaid principal and/or interest
advances on any related Serviced Companion Loan and advance interest thereon,
and (iii) any related Liquidation Fee.
"Excess Liquidation Proceeds Account": The segregated account or
sub-account of the Distribution Account created and maintained by the Trustee
pursuant to Section 3.04(c)(iv) in trust for the Certificateholders, which shall
be entitled "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 2006-1, Excess Liquidation Proceeds Account".
"Exchange Act": The Securities Exchange Act of 1934, as amended, and
the rules and regulations thereunder.
"Exchange Certificate": The certificate necessary to exchange an
interest in a Regulation S Global Certificate for an interest in a Domestic
Global Certificate, which is in the form of Exhibit Q attached hereto, or the
certificate necessary to exchange an interest in a Domestic Global Certificate
for an interest in a Regulation S Global Certificate, which is in the form of
Exhibit O or Exhibit P, as applicable, hereto, in each case as described in
Section 5.02(m).
"Xxxxxx Mae": The Federal National Mortgage Association or any
successor.
"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.
"Global Certificates": The Certificates represented by the
Regulation S Global Certificates or the Domestic Global Certificates.
"Grantor Trust": Either the Excess Interest Grantor Trust or the
Class A-SBFL Grantor Trust.
"Ground Lease": The ground lease pursuant to which any Mortgagor
holds a leasehold interest in the related Mortgaged Property and any estoppels
or other agreements executed and delivered by the ground lessor in favor of the
lender under the Mortgage Loan.
"Group 1 Mortgage Loan": Any Mortgage Loan identified on the
Mortgage Loan Schedule as belonging to Loan Group 1.
"Group 2 Mortgage Loan": Any Mortgage Loan identified on the
Mortgage Loan Schedule as belonging to Loan Group 2.
"Hawthorne Place Apartments Mezzanine Intercreditor Agreement": That
certain Intercreditor Agreement, dated as of October 6, 2005, by and between
Bank of America, National Association as "Senior Lender" and the Hawthorne Place
Apartments Mezzanine Loan Holder as "Mezzanine Lender".
"Hawthorne Place Apartments Mezzanine Loan": That certain mezzanine
loan related to the Hawthorne Place Apartments Mortgage Loan, which is evidenced
by that certain Loan Agreement, dated as of October 6, 2005, by and between
HMezz, LLC and the Hawthorne Place Apartments Mezzanine Loan Holder.
"Hawthorne Place Apartments Mezzanine Loan Holder": Tremont GRE
Funding LLC, and its permitted successors or assigns.
"Hawthorne Place Apartments Mortgage Loan": That certain Mortgage
Loan identified as Loan No. 59452 on the Mortgage Loan Schedule.
"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. or Mexican federal, state or
local environmental related laws and regulations, and specifically including,
without limitation, asbestos and asbestos-containing materials, polychlorinated
biphenyls ("PCBs"), radon gas, petroleum and petroleum products, urea
formaldehyde and any substances classified as being "in inventory", "usable work
in process" or similar classification that would, if classified as unusable, be
included in the foregoing definition.
"Holder": See the definition of "Certificateholder" in this Section
1.01.
"HUD-Approved Servicer": A servicer that is a mortgagee approved by
the Secretary of Housing and Urban Development pursuant to Sections 207 and 211
of the National Housing Act.
"Independent": When used with respect to any specified Person, any
such Person who (i) is in fact independent of the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the REMIC Administrator and any and
all Affiliates thereof, (ii) does not have any direct financial interest in or
any material indirect financial interest in any of the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the REMIC Administrator or any
Affiliate thereof, and (iii) is not connected with the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the REMIC Administrator or any
Affiliate thereof as an officer, employee, promoter, placement agent, trustee,
partner, director or Person performing similar functions; provided, however,
that a Person shall not fail to be Independent of the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the REMIC Administrator or any
Affiliate thereof merely because such Person is the beneficial owner of 1% or
less of any Class of securities issued by the Depositor, the Master Servicer,
the Special Servicer, the Trustee, the REMIC Administrator or any Affiliate
thereof, as the case may be; provided, further, that such ownership constitutes
less than 1% of the total assets owned by such Person.
"Independent Contractor": Any Person that would be an "independent
contractor" with respect to the Torre Mayor Loan REMIC or REMIC I, as
applicable, within the meaning of Section 856(d)(3) of the Code if the Torre
Mayor Loan REMIC or REMIC I were a real estate investment trust (except that the
ownership test set forth in that section shall be considered to be met by (i)
any Person that owns, directly or indirectly, 35 percent or more of any Class of
Certificates, or such other interest in any Class of Certificates as is set
forth in an Opinion of Counsel, which shall not be an expense of the Trustee,
the REMIC Administrator or the Trust, delivered to the Trustee and the REMIC
Administrator), so long as the Torre Mayor Loan REMIC or REMIC I, as applicable,
does not receive or derive any income from such Person and provided that the
relationship between such Person and the Torre Mayor Loan REMIC or REMIC I, as
applicable is at arm's length, all within the meaning of Treasury Regulations
Section 1.856-4(b)(5), or (ii) any other Person upon receipt by the Trustee and
the REMIC Administrator of an Opinion of Counsel, which shall be at no expense
to the Trustee, the REMIC Administrator or the Trust, to the effect that the
taking of any action in respect of any REO Property by such Person, subject to
any conditions therein specified, that is otherwise herein contemplated to be
taken by an Independent Contractor will not cause such REO Property to cease to
qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code, or cause any income realized in respect of such REO Property to fail
to qualify as Rents from Real Property.
"Initial Class Notional Amount": With respect to the Class XC
Certificates, the initial Class XC Notional Amount thereof as of the Closing
Date is equal to $2,037,667,323 and with respect to the Class XP Certificates,
the initial Class XP Notional Amount thereof as of the Closing Date is equal to
$1,989,427,000.
"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
Barclays Capital Inc.
"Initial Resolution Period": As defined in Section 2.03.
"Institutional Accredited Investor": As defined in Section 5.02(b).
"Insurance Policy": With respect to any Loan or Serviced Whole Loan
or REO Property, any hazard insurance policy, seismic (earthquake) insurance
policy, business interruption insurance policy, flood insurance policy, title
policy or other insurance policy that is maintained from time to time in respect
of such Loan (or the related Mortgaged Property) or in respect of such REO
Property, as the case may be.
"Insurance Proceeds": Proceeds paid under any Insurance Policy, to
the extent such proceeds are not applied to the restoration of the related
Mortgaged Property or REO Property or released to the Mortgagor or any other
third party as permitted under the related loan documents, in either case, in
accordance with the Servicing Standard and with applicable law.
"Intercreditor Agreements": The KinderCare Portfolio Intercreditor
Agreement, the Desert Passage Intercreditor Agreement, the Torre Mayor A Notes
Intercreditor Agreement and the Torre Mayor Intercreditor Agreement.
"Interest Accrual Basis": The basis on which interest accrues in
respect of any Mortgage Loan, the Torre Mayor Loan REMIC Regular Interest, the
Class A-SBFL Regular Interest, any REMIC I Regular Interest or any Class of
REMIC II Regular Certificates, consisting of one of the following: (i) a 30/360
Basis; or (ii) an Actual/360 Basis.
"Interest Accrual Period": With respect to the Torre Mayor Loan
REMIC Regular Interest, the Class A-SBFL Regular Interest, each Class of REMIC I
Regular Interests and each Class of REMIC II Regular Certificates (other than
the Class A-SBFL Certificates) for any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. With
respect to the Class A-SBFL Certificates, interest shall be calculated on an
Actual/360 Basis and, for any Distribution Date, shall be deemed to accrue
during the period from and including the Distribution Date in the month
preceding the month in which the related Distribution Date occurs (or, in the
case of the first Distribution Date, the Closing Date through and including
April 9, 2006) to but excluding the related Distribution Date; provided,
however, that if a Class A-SBFL Distribution Conversion has occurred, the
Interest Accrual Period with respect to the Class A-SBFL Certificates shall be
the same as the Interest Accrual Period for the Class A-SBFL Regular Interest.
"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
"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 2006-1, Interest Reserve Account".
"Interested Person": The Depositor, a Mortgage Loan Seller, the
Master Servicer, any Sub-Servicer, the Special Servicer, the Trustee, any Holder
of a Certificate or any Affiliate of any such Person.
"Investment Account": As defined in Section 3.06(a).
"Investment Grade Sequential Pay Certificates": The Class A, Class
B, Class C, Class D, Class E, Class F, Class G, Class H and Class J
Certificates.
"Investment Representation Letter": As defined in Section 5.02(b).
"IRS": The Internal Revenue Service or any successor.
"KinderCare Portfolio Controlling Class Holder": The holders of a
majority percentage interest in the KinderCare Portfolio Pari Passu Note A-1
Controlling Class.
"KinderCare Portfolio Controlling Holder": The KinderCare Portfolio
Controlling Class Holder except that during the existence of a KinderCare
Portfolio Control Appraisal Period, the KinderCare Portfolio Controlling Holder
shall be the KinderCare Portfolio Pari Passu Noteholders, pursuant to the
KinderCare Portfolio Intercreditor Agreement.
"KinderCare Portfolio Intercreditor Agreement": With respect to the
KinderCare Portfolio Whole Loan, the Intercreditor and Servicing Agreement,
dated as of December 1, 2005, by and among the KinderCare Portfolio Pari Passu
Note A-1 Noteholder, the KinderCare Portfolio Pari Passu Note A-2 Noteholder and
the KinderCare Portfolio Pari Passu Note A-3 Noteholder relating to the relative
rights of such holders, as the same may be further amended from time to time in
accordance with the terms thereof.
"KinderCare Portfolio Junior Mezzanine Intercreditor Agreement":
That certain Subordination and Intercreditor Agreement, dated as of November 9,
2005, by and among Bank of America, National Association as "Senior Lender",
Bank of America, National Association as "Senior Mezzanine Lender" and the
KinderCare Portfolio Junior Mezzanine Loan Holder as "Junior Mezzanine Lender".
"KinderCare Portfolio Junior Mezzanine Loan": That certain mezzanine
loan related to the KinderCare Portfolio Pari Passu Note A-2 Mortgage Loan,
which is evidenced by that certain Mezzanine Loan Agreement, dated as of
November 9, 2005, by and between KC Mezco II LLC and the KinderCare Portfolio
Junior Mezzanine Loan Holder.
"KinderCare Portfolio Junior Mezzanine Loan Holder": Condors, LLC,
and its permitted successors or assigns.
"KinderCare Portfolio Master Servicer": The master servicer under
the KinderCare Portfolio Pooling Agreement, which as of the Closing Date is Bank
of America, National Association.
"KinderCare Portfolio Senior Mezzanine Intercreditor Agreement":
That certain Intercreditor Agreement, dated as of December 1, 2005, by and
between Bank of America, National Association as "Senior Lender" and the
KinderCare Portfolio Senior Mezzanine Loan Holder as "Mezzanine Lender".
"KinderCare Portfolio Senior Mezzanine Loan": That certain mezzanine
loan related to the KinderCare Portfolio Pari Passu Note A-2 Mortgage Loan,
which is evidenced by that certain Mezzanine Loan Agreement, dated as of
November 9, 2005, by and between KC Mezco I LLC and the KinderCare Portfolio
Senior Mezzanine Loan Holder.
"KinderCare Portfolio Senior Mezzanine Loan Holder": Bank of
America, National Association, and its permitted successors or assigns.
"KinderCare Portfolio Pari Passu Note A-2 Mortgage Loan": The
Mortgage Loan identified as Loan No. 59414 in the Mortgage Loan Schedule, which,
together with the KinderCare Portfolio Pari Passu Note A-1 and the KinderCare
Portfolio Pari Passu Note A-3, is secured by a Mortgage on the KinderCare
Portfolio Mortgaged Property.
"KinderCare Portfolio Mortgaged Property": With respect to the
KinderCare Portfolio Whole Loan, the property that secures such KinderCare
Portfolio Whole Loan.
"KinderCare Portfolio Nonrecoverable Servicing Advance": With
respect to the KinderCare Portfolio Pari Passu Note A-2 Mortgage Loan, a
"Nonrecoverable Servicing Advance" as defined in the KinderCare Portfolio
Pooling Agreement.
"KinderCare Portfolio Pari Passu Noteholders": With respect to the
KinderCare Portfolio Whole Loan, collectively, the holder of the Mortgage Note
for the KinderCare Portfolio Pari Passu Note A-2 Mortgage Loan, the KinderCare
Portfolio Pari Passu Note A-1 Companion Loan Holder and the KinderCare Portfolio
Pari Passu Note A-3 Companion Loan Holder.
"KinderCare Portfolio Pari Passu Note A-1": With respect to the
KinderCare Portfolio Whole Loan, the related Mortgage Note identified as "Note
A-1" in the KinderCare Portfolio Intercreditor Agreement, which Note is not
included in the Trust and which Note is pari passu in right of payment to the
KinderCare Portfolio Pari Passu Note A-2 and the KinderCare Portfolio Pari Passu
Note A-3.
"KinderCare Portfolio Pari Passu Note A-1 Companion Loan": The loan
evidenced by the KinderCare Portfolio Pari Passu Note A-1.
"KinderCare Portfolio Pari Passu Note A-1 Companion Loan Holder":
The KinderCare Portfolio Pari Passu Note A-1 Holder.
"KinderCare Portfolio Pari Passu Note A-1 Companion Loan
Securities": For so long as the KinderCare Portfolio Pari Passu Note A-2 or a
successor REO Serviced Loan with respect to the KinderCare Portfolio Pari Passu
Note A-2 is part of the Mortgage Pool, any class of securities backed by all or
any component of the KinderCare Portfolio Pari Passu Note A-1.
"KinderCare Portfolio Pari Passu Note A-1 Controlling Class": As of
any date of determination, the outstanding class of KinderCare Portfolio Pari
Passu Note A-1 Companion Loan Securities with the lowest payment priority that
has a then outstanding certificate balance (net of any appraisal reduction
amounts allocable to such class pursuant to the KinderCare Portfolio Pooling
Agreement) at least equal to 25% of its initial certificate balance.
"KinderCare Portfolio Pari Passu Note A-1 Holder": The holder of the
KinderCare Portfolio Pari Passu Note A-1.
"KinderCare Portfolio Pari Passu Note A-2": With respect to the
KinderCare Portfolio Pari Passu Note A-2 Mortgage Loan, the related Mortgage
Note that is included in the Trust Fund.
"KinderCare Portfolio Pari Passu Note A-3": With respect to the
KinderCare Portfolio Whole Loan, the related Mortgage Note identified as "Note
A-3" in the KinderCare Portfolio Intercreditor Agreement, which Note is not
included in the Trust and which Note is pari passu in right of payment to the
KinderCare Portfolio Pari Passu Note A-1 and the KinderCare Portfolio Pari Passu
Note A-2.
"KinderCare Portfolio Pari Passu Note A-3 Companion Loan": The loan
evidenced by the KinderCare Portfolio Pari Passu Note A-3.
"KinderCare Portfolio Pari Passu Note A-3 Companion Loan Holder":
The KinderCare Portfolio Pari Passu Note A-3 Holder.
"KinderCare Portfolio Pari Passu Notes": With respect to the
KinderCare Portfolio Whole Loan, collectively, the KinderCare Portfolio Pari
Passu Note A-1, the KinderCare Portfolio Pari Passu Note A-2 and the KinderCare
Portfolio Pari Passu Note A-3.
"KinderCare Portfolio Pooling Agreement": That certain pooling and
servicing agreement dated as of December 1, 2005 among Banc of America
Commercial Mortgage Inc., as depositor, the KinderCare Portfolio Master
Servicer, as master servicer, the KinderCare Portfolio Special Servicer, as
special servicer, and the KinderCare Portfolio Trustee, as trustee and REMIC
administrator.
"KinderCare Portfolio Special Servicer": The special servicer under
the KinderCare Portfolio Pooling Agreement, which of as of the Closing Date is
LNR Partners, Inc.
"KinderCare Portfolio Trustee": The trustee under the KinderCare
Portfolio Pooling Agreement, which of as of the Closing Date is LaSalle Bank
National Association.
"KinderCare Portfolio Whole Loan": With respect to KinderCare
Portfolio Pari Passu Note A-2 Mortgage Loan, such Mortgage Loan together with
the KinderCare Portfolio Pari Passu Note A-1 and the KinderCare Portfolio Pari
Passu Note A-3. References herein to the KinderCare Portfolio Whole Loan shall
be construed to refer to the aggregate indebtedness under the KinderCare
Portfolio Pari Passu Note A-1, the KinderCare Portfolio Pari Passu Note A-2 and
the KinderCare Portfolio Pari Passu Note A-3.
"Late Collections": With respect to any Serviced Loan, all amounts
received thereon during any Collection Period, whether as payments, Insurance
Proceeds, Condemnation Proceeds, Liquidation Proceeds or otherwise, that
represent late collections of the principal and/or interest portions of a
Monthly Payment (other than a Balloon Payment) or an Assumed Monthly Payment in
respect of such Serviced Loan due or deemed due, as the case may be, for a Due
Date in a previous Collection Period, or for a Due Date coinciding with or
preceding the Cut-off Date, and not previously received or recovered. With
respect to any REO Serviced Loan, all amounts received in connection with the
related REO Property during any Collection Period, whether as Insurance
Proceeds, Condemnation Proceeds, Liquidation Proceeds, REO Revenues or
otherwise, that represent late collections of the principal and/or interest
portions of a Monthly Payment (other than a Balloon Payment) or an Assumed
Monthly Payment in respect of the related Serviced Loan or of an Assumed Monthly
Payment in respect of such REO Serviced Loan due or deemed due, as the case may
be, for a Due Date in a previous Collection Period and not previously received
or recovered.
"Letter of Credit": With respect to any Loan or Serviced Whole Loan,
any third-party letter of credit delivered by or at the direction of the
Mortgagor pursuant to the terms of such Loan in lieu of the establishment of, or
deposit otherwise required to be made into, a Reserve Fund.
"LIBOR": With respect to the Class A-SBFL Certificates and each
Interest Accrual Period, the rate for deposits in U.S. Dollars, for a period
equal to one month, which appears on the Dow Xxxxx Market Service (formerly
Telerate) Page 3750 as of 11:00 a.m., London time, on the related LIBOR
Determination Date. If such rate does not appear on Dow Xxxxx Market Service
Page 3750, the rate for that Interest Accrual Period will be determined on the
basis of the rates at which deposits in U.S. Dollars are offered by any four
major reference banks in the London interbank market selected by the Trustee to
provide such bank's offered quotation of such rates at approximately 11:00 a.m.,
London time, on the related LIBOR Determination Date to prime banks in the
London interbank market for a period of one month, commencing on the first day
of such Interest Accrual Period and in an amount that is representative for a
single such transaction in the relevant market at the relevant time. The Trustee
will request the principal London office of any four major reference banks in
the London interbank market selected by the Trustee to provide a quotation of
such rates, as offered by each such bank. If at least two such quotations are
provided, the rate for that Interest Accrual Period will be the arithmetic mean
of the quotations. If fewer than two quotations are provided as requested, the
rate for that Interest Accrual Period will be the arithmetic mean of the rates
quoted by major banks in New York City selected by the Trustee, at approximately
11:00 a.m., New York City time, on the LIBOR Determination Date with respect to
such Interest Accrual Period for loans in U.S. Dollars to leading European banks
for a period equal to one month, commencing on the LIBOR Determination Date with
respect to such Interest Accrual Period and in an amount that is representative
for a single such transaction in the relevant market at the relevant time. The
Trustee will determine LIBOR for each Interest Accrual Period and the
determination of LIBOR by Trustee will be binding absent manifest error.
"LIBOR Determination Date": (i) with respect to the initial Interest
Accrual Period, the date that is two LIBOR Business Days prior to the Closing
Date, and (ii) with respect to each Interest Accrual Period thereafter, the date
that is two LIBOR Business Days prior to the beginning of the related Interest
Accrual Period.
"LIBOR Business Day": Any day on which commercial banks are open for
international business (including dealings in U.S. Dollar deposits) in London,
England and New York, New York.
"Liquidation Event": With respect to any Serviced Loan, any of the
following events: (i) such Serviced Loan is paid in full; (ii) a Final Recovery
Determination is made with respect to such Serviced Loan; (iii) the related
Mortgage Loan (or related REO Serviced Loan) is repurchased by the related
Mortgage Loan Seller pursuant to Section 4 of the Mortgage Loan Purchase
Agreement or Section 6 thereof in the case of the Torre Mayor Pari Passu Note
A-2 Mortgage Loan or the Cayman Islands Mortgage Loan; (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 Serviced Loan has a related Mezzanine
Loan) pursuant to any Mezzanine Intercreditor Agreement; (v) such Loan is
purchased by the Special Servicer or the Master Servicer pursuant to Section
9.01; or (vi) in the case of a Whole Loan, such Whole Loan is purchased by the
Whole Loan Purchase Option Holder or its designee pursuant to the related
Intercreditor Agreement. With respect to any REO Property (and the related REO
Serviced Loan), any of the following events: (i) a Final Recovery Determination
is made with respect to such REO Property or (ii) such REO Property is purchased
by the Master Servicer or the Special Servicer pursuant to Section 9.01.
"Liquidation Expenses": All customary, reasonable and necessary
"out-of-pocket" costs and expenses due and owing (but not otherwise covered by
Servicing Advances) in connection with the liquidation of any Specially Serviced
Loan or REO Property (other than any REO Property related to a Non-Serviced
Mortgage Loan) 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 (other than any REO Property related to a Non-Serviced Mortgage
Loan), the fee designated as such and payable to the Special Servicer pursuant
to the third paragraph of Section 3.11(c). Notwithstanding the foregoing and for
the avoidance of doubt, no Liquidation Fee shall be payable in connection with
(a) the purchase of a Defaulted Serviced Loan by the Majority Certificateholder
of the Controlling Class pursuant to any applicable purchase right set forth in
Section 3.18(c), or (l) or with respect to a purchase of a related Defaulted
Serviced Loan at its fair value as determined in Section 3.18, unless such
purchase is by an assignee of the Majority Certificateholder of the Controlling
Class or the Special Servicer, such assignee is not an affiliate of the Majority
Certificateholder of the Controlling Class or the Special Servicer, such
assignment is for no material consideration, and 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 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 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 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, or Section 6 thereof in the case
of the Torre Mayor Pari Passu Note A-2 Mortgage Loan or the Cayman Islands
Mortgage Loan, 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 or
(f) the purchase of the KinderCare Portfolio Pari Passu Note A-2 Mortgage Loan
by the KinderCare Portfolio Controlling Holder or the Torre Mayor Pari Passu
Note A-2 Mortgage Loan pursuant to Section 3.18(m).
"Liquidation Fee Rate": With respect to each Specially Serviced Loan
or REO Property as to which a Liquidation Fee is payable, 1.0% (100 basis
points).
"Liquidation Proceeds": All cash amounts (other than Insurance
Proceeds, Condemnation Proceeds and REO Revenues) received by the Master
Servicer or the Special Servicer in connection with: (i) the liquidation of a
Mortgaged Property or other collateral constituting security for a Defaulted
Serviced Loan through trustee's sale, foreclosure sale, REO Disposition or
otherwise, exclusive of any portion thereof required to be released to the
related Mortgagor in accordance with applicable law and/or the terms and
conditions of the related loan documents; (ii) the realization upon any
deficiency judgment obtained against a Mortgagor; (iii) the purchase of a
Defaulted Serviced Loan by any Controlling Class Certificateholder(s) pursuant
to Section 3.18(c), by the Special Servicer pursuant to Section 3.18(d), by a
Whole Loan Purchase Option Holder pursuant to the related Intercreditor
Agreement or by the related Mezzanine Loan Holder pursuant to the related
Mezzanine Intercreditor Agreement; (iv) the repurchase of a Mortgage Loan by the
related Mortgage Loan Seller pursuant to the related Mortgage Loan Purchase and
Sale Agreement or, in the case of any Non-Serviced Mortgage Loan or any Serviced
Pari Passu Companion Loan, 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; (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; or (viii) in the case of the
Torre Mayor Pari Passu Note A-2 Mortgage Loan, if such Mortgage Loan is
purchased by the related Mortgage Loan Seller pursuant to Section 3.18(p).
"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 Serviced Loans with respect
thereto.
"Loan Group 1 Available Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Available Distribution Amount
attributable to Loan Group 1.
"Loan Group 1 Principal Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Principal Distribution Amount
attributable to Loan Group 1.
"Loan Group 2": Collectively, all of the Mortgage Loans that are
Group 2 Mortgage Loans and any successor REO Serviced Loans with respect
thereto.
"Loan Group 2 Available Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Available Distribution Amount
attributable to Loan Group 2.
"Loan Group 2 Principal Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Principal Distribution Amount
attributable to Loan Group 2.
"Lock-Box Agreement": With respect to any Loan, the lock-box
agreement, if any, between the 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(j).
"Loss of Value Reserve Fund": The "outside reserve fund" (within the
meaning of Treasury Regulations Section 1.860G-2(h)) designated as such pursuant
to Section 2.12. The Loss of Value Reserve Fund will be part of the Trust, but
not part of the Grantor Trust or any REMIC.
"MAI": Member of the Appraisal Institute.
"Majority Certificateholder": With respect to any specified Class or
Classes of Certificates, as of any date of determination, any Holder or
particular group of Holders of Certificates of such Class or Classes, as the
case may be, entitled to a majority of the Voting Rights allocated to such Class
or Classes, as the case may be.
"Majority Mortgage Loan": Any of the Mortgage Loans other than the
Torre Mayor Pari Passu Note A-2 Mortgage Loan.
"Master Servicer": Bank of America, National Association, its
successor in interest or any successor master servicer appointed as herein
provided.
"Master Servicer Remittance Amount": With respect to any Master
Servicer Remittance Date, an amount equal to (a) all amounts on deposit in the
Certificate Account as of the commencement of business on such Master Servicer
Remittance Date, net of (b) any portion of the amounts described in clause (a)
of this definition that represents one or more of the following: (i) collected
Monthly Payments that are due on a Due Date following the end of the related
Collection Period, (ii) any unscheduled payments of principal (including,
without limitation, Principal Prepayments) and interest, Liquidation Proceeds
and Insurance Proceeds received after the end of the related Collection Period,
(iii) any Prepayment Premiums received after the end of the related Collection
Period, (iv) any amounts payable or reimbursable to any Person from the
Certificate Account pursuant to any of clauses (ii) through (xvii) of Section
3.05(a), (v) any Excess Liquidation Proceeds, (vi) any amounts deposited into
the Certificate Account in error, and (vii) with respect to each Mortgage Loan
that accrues interest on an Actual/360 Basis and any Distribution Date relating
to the one-month period preceding the Distribution Date in each February (and in
any January of a year that is not a leap year), an amount equal to the related
Withheld Amount pursuant to Section 4.05; provided that, with respect to the
Master Servicer Remittance Date that occurs in the same calendar month as the
Final Distribution Date, the Master Servicer Remittance Amount will be
calculated without regard to clauses (b)(i), (b)(ii) and (b)(iii) of this
definition; provided, further, that in no event shall any amounts be included in
the Master Servicer Remittance Amount to the extent that it is 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 Serviced
Loan, the fee payable to the Master Servicer pursuant to Section 3.11(a) and
from which any Primary Servicing Fee is payable (and, in the case of the
KinderCare Portfolio Pari Passu Note A-2 Mortgage Loan and the Torre Mayor Pari
Passu Note A-2 Mortgage Loan, without duplication of the "Master Servicing Fee"
payable in respect of the KinderCare Portfolio Whole Loan or the Torre Mayor
Whole Loan under the KinderCare Portfolio Pooling Agreement and the Torre Mayor
Pooling Agreement, as applicable).
"Master Servicing Fee Rate": With respect to (a) each Mortgage Loan
and any related REO Serviced Loan, the Administrative Fee Rate specified for
each such Mortgage Loan on the Mortgage Loan Schedule minus the Trustee Fee
Rate, and (b) with respect to each Serviced Companion Loan and any related REO
Serviced Loan, the Master Servicing Fee Rate shall be the same as the Master
Servicing Fee Rate for the related Mortgage Loan; provided, however, with
respect to any Companion Loan related to a Serviced Loan purchased by the
Depositor from Barclays, the Master Servicing Fee Rate shall not exceed the
Primary Servicing Fee Rate for the related Serviced 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.
"Mexico Gross-Up Payment": As defined in Section 6(a) of the
Mortgage Loan Purchase and Sale Agreement, between Barclays and the Depositor.
"Mezzanine Intercreditor Agreement": With respect to the Desert
Passage Mezzanine Loan, the Desert Passage Mezzanine Intercreditor Agreement,
with respect to the Hawthorne Place Apartments Mezzanine Loan, the Hawthorne
Place Apartments Mezzanine Intercreditor Agreement, with respect to the
KinderCare Portfolio Senior Mezzanine Loan, the KinderCare Portfolio Senior
Mezzanine Intercreditor Agreement, with respect to the KinderCare Portfolio
Junior Mezzanine Loan, the KinderCare Portfolio Junior Mezzanine Intercreditor
Agreement, with respect to the North Park Towers Mezzanine Loan, the North Park
Towers Mezzanine Intercreditor Agreement, with respect to the Willowind
Apartments Mezzanine Loan, the Willowind Apartments Mezzanine Intercreditor
Agreement, and, with respect to any Mortgage Loan with permitted future
mezzanine indebtedness, the mezzanine intercreditor agreement related to such
future mezzanine loan.
"Mezzanine Loan": Collectively, the Desert Passage Mezzanine Loan,
the Hawthorne Place Apartments Mezzanine Loan, the KinderCare Portfolio Senior
Mezzanine Loan, the KinderCare Portfolio Junior Mezzanine Loan, the North Park
Towers Mezzanine Loan, the Willowind Apartments Mezzanine Loan, and, with
respect to any Mortgage Loan with permitted future mezzanine indebtedness, such
future mezzanine loan.
"Mezzanine Loan Holder": With respect to the Desert Passage
Mezzanine Loan, the Desert Passage Mezzanine Loan Holder, with respect to the
Hawthorne Place Apartments Mezzanine Loan, the Hawthorne Place Apartments
Mezzanine Loan Holder, with respect to the KinderCare Portfolio Senior Mezzanine
Loan, the KinderCare Portfolio Senior Mezzanine Loan Holder, with respect to the
KinderCare Portfolio Junior Mezzanine Loan, the KinderCare Portfolio Junior
Mezzanine Loan Holder, with respect to the North Park Towers Mezzanine Loan, the
North Park Towers Mezzanine Loan Holder, with respect to the Willowind
Apartments Mezzanine Loan, the Willowind Apartments Mezzanine Loan Holder, and,
with respect to any Mortgage Loan with permitted future mezzanine indebtedness,
the mezzanine lender under such future mezzanine loan.
"Modified Serviced Loan": Any Serviced Loan as to which any
Servicing Transfer Event has occurred and that has been modified by the Special
Servicer pursuant to Section 3.20 in a manner that:
(a) affects the amount or timing of any payment of principal or
interest due thereon (other than, or in addition to, bringing current
Monthly Payments with respect to such Serviced Loan);
(b) except as expressly contemplated by the related loan documents,
results in a release of the lien of the Mortgage on any material portion
of the related Mortgaged Property without a corresponding Principal
Prepayment in an amount or the delivery of substitute real property
collateral with a fair market value (as is) that is not less than the fair
market value (as is), as determined by an Appraisal delivered to the
Special Servicer (at the expense of the related Mortgagor and upon which
the Special Servicer may conclusively rely), of the property to be
released; or
(c) in the good faith and reasonable judgment of the Special
Servicer, otherwise materially impairs the security for such Serviced Loan
or reduces the likelihood of timely payment of amounts due thereon.
"Monthly Payment": With respect to any Loan, for any Due Date as of
which such Loan is outstanding, the scheduled monthly payment (or, in the case
of an ARD Loan after its Anticipated Repayment Date, the minimum required
monthly payment, exclusive of any Excess Interest and any excess cash flow) of
principal and/or interest on such Loan, including, without limitation, a Balloon
Payment, that is actually payable by the related Mortgagor from time to time
under the terms of the related Mortgage Note (as such terms may be changed or
modified in connection with a bankruptcy or similar proceeding involving the
related Mortgagor or a modification, waiver or amendment of such Loan granted or
agreed to by the Master Servicer or Special Servicer pursuant to Section 3.20
and applicable law); provided that the Monthly Payment due in respect of any ARD
Loan after its Anticipated Repayment Date shall not include Excess Interest.
"Moody's": Xxxxx'x Investors Service, Inc. or its successor in
interest. If neither Moody's nor any successor remains in existence, "Moody's"
shall be deemed to refer to such other nationally recognized statistical rating
agency or other comparable Person designated by the Depositor, notice of which
designation shall be given to the Trustee, the Master Servicer, the Special
Servicer and the REMIC Administrator, and specific ratings of Moody's herein
referenced shall be deemed to refer to the equivalent ratings of the party so
designated.
"Mortgage": With respect to any Loan, separately and collectively,
as the context may require, each mortgage, deed of trust and/or other similar
document or instrument securing the related Mortgage Note and creating a lien on
the related Mortgaged Property.
"Mortgage File": With respect to any Mortgage Loan, subject to
Sections 1.04 and 2.01, collectively the following documents:
(i) (A) the original executed Mortgage Note, endorsed (either
on the face thereof or pursuant to a separate allonge) "Pay to the
order of Xxxxx Fargo Bank, N.A., as Trustee for the registered
holders of Banc of America Commercial Mortgage Inc. Commercial
Mortgage Pass-Through Certificates, Series 2006-1, without recourse"
or in blank, and further showing a complete, unbroken chain of
endorsement from the originator (if such originator is other than
the related Mortgage Loan Seller); or alternatively, if the original
executed Mortgage Note has been lost, a lost note affidavit and
indemnity from the related Mortgage Loan Seller with a copy of such
Mortgage Note, and (B) in the case of each Companion Loan, a copy of
the executed Mortgage Note for such Companion Loan;
(ii) an original or a copy of the Mortgage and any intervening
assignments that precede the assignment referred to in clause (iv)
of this definition, in each case (unless the particular item has not
been returned from the applicable recording office) with evidence of
recording indicated thereon;
(iii) an original or a copy of any related Assignment of
Leases (if such item is a document separate from the Mortgage) and
of any intervening assignments thereof that precede the assignment
referred to in clause (v) of this definition, in each case (unless
the particular item has not been returned from the applicable
recording office) with evidence of recording indicated thereon;
(iv) subject to the provisos at the end of this paragraph, (A)
for all Mortgage Loans other than the Cayman Islands Mortgage Loan,
an original executed assignment of the Mortgage in favor of Xxxxx
Fargo Bank, N.A., as Trustee for the registered holders of Banc of
America Commercial Mortgage Inc. Commercial Mortgage Pass-Through
Certificates, Series 2006-1 or in blank, in recordable form (except
for any missing recording information with respect to such
Mortgage), (B) in the case of the Cayman Islands Mortgage Loan, an
original executed transfer of the Mortgage to the Cayman Collateral
Trustee for the benefit of itself as trustee for the holders of the
Banc of America Commercial Mortgage Inc. Commercial Mortgage
Pass-through Certificates, Series 2006-1 and Xxxxx Fargo Bank, N.A.
as trustee for the holders of the Banc of America Commercial
Mortgage Inc. Commercial Mortgage Pass-through Certificates, Series
2006-1 and (C) in the case of each Whole Loan, an original executed
assignment of the Mortgage also to Xxxxx Fargo Bank, N.A. in its
capacity as "lead lender" on behalf of the holders of the related
Companion Loans, provided that, if the related Mortgage has not been
returned from the applicable public recording office, such
assignment of Mortgage may exclude the information to be provided by
the recording office, and provided, further, if the related Mortgage
has been recorded in the name of Mortgage Electronic Registration
Systems, Inc. ("MERS") or its designee, no assignment of Mortgage in
favor of the Trustee will be required to be prepared or delivered
and instead, the Master Servicer shall take all actions as are
necessary to cause the Trustee to be shown as, and the Trustee shall
take all actions necessary to confirm that it is shown as, the owner
of the related Mortgage on the records of MERS for purposes of the
system of recording transfers of beneficial ownership of mortgages
maintained by MERS;
(v) an original executed assignment of any related Assignment
of Leases (if such item is a document separate from the Mortgage),
in favor of Xxxxx Fargo Bank, N.A., as Trustee for the registered
holders of Banc of America Commercial Mortgage Inc. Commercial
Mortgage Pass-Through Certificates, Series 2006-1 or in blank, in
recordable form (except for any missing recording information with
respect to such Assignment of Leases) and in the case of each Whole
Loan, also to Xxxxx Fargo Bank, N.A. in its capacity as "lead
lender" or on behalf of the holders of the related Companion Loan,
provided that if the related Mortgage has been recorded in the name
of MERS or its designee, no assignment of Assignment of Leases in
favor of the Trustee will be required to be prepared or delivered
and instead, the Master Servicer shall take all actions as are
necessary to cause the Trustee to be shown as, and the Trustee shall
take all actions necessary to confirm that it is shown as, the owner
of the related Mortgage on the records of MERS for purposes of the
system of recording transfers of beneficial ownership of mortgages
maintained by MERS;
(vi) originals or copies of any written assumption,
modification, written assurance and substitution agreements in those
instances where the terms or provisions of the Mortgage or Mortgage
Note have been modified or the Mortgage Loan has been assumed, in
each case (unless the particular item has not been returned from the
applicable recording office) with evidence of recording indicated
thereon if the instrument being modified or assumed is a recordable
document;
(vii) the original or a copy of the policy of lender's title
insurance or, if such policy has not yet been issued, a "marked-up"
pro forma title policy or commitment for title insurance marked as
binding and countersigned by the issuer or its authorized agent
either on its face or by an acknowledged closing instruction or
escrow letter;
(viii) filed copies of any prior UCC Financing Statements in
favor of the originator of such Mortgage Loan or in favor of any
assignee prior to the Trustee (but only to the extent the related
Mortgage Loan Seller had possession of such UCC Financing Statements
prior to the Closing Date) and, in connection with such UCC
Financing Statements, an original UCC-2 or UCC-3, as appropriate, in
favor of Xxxxx Fargo Bank, N.A., as Trustee for the registered
holders of Banc of America Commercial Mortgage Inc. Commercial
Mortgage Pass-Through Certificates, Series 2006-1 or in blank, in a
form that is complete and suitable for filing or recording, and
sufficient to assign to the Trustee the security interest held by
the originator of the Mortgage Loan or its assignee; provided, if
the related Mortgage Loan has been recorded in the name of MERS or
its designee, no UCC Financing Statement in favor of the Trustee
will be required to be prepared or delivered and instead, the Master
Servicer shall take all actions as are necessary to cause the
Trustee, 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 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;
(xiv) a list attached to each Mortgage File indicating the
documents to be included in each such Mortgage File (the "Mortgage
Loan Checklist") which list may be modified within 180 days by the
related Mortgage Loan Seller after the Closing Date to correct any
errors in accordance with Section 2.02(e);
(xv) a copy of the KinderCare Portfolio Pooling Agreement; and
(xvi) a copy of the Torre Mayor Pooling Agreement;
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.
With respect to each of the KinderCare Portfolio Pari Passu Note A-2
Mortgage Loan and the Torre Mayor Pari Passu Note A-2 Mortgage Loan, the
preceding document delivery requirements shall be deemed to be met by the
delivery by the related Mortgage Loan Seller of copies of the documents
specified above (other than the KinderCare Portfolio Pari Passu Note A-2 and the
Torre Mayor Pari Passu Note A-2 (and all intervening endorsements), with respect
to which the originals shall be required), including a copy of the related
Mortgage.
"Mortgage Loan": Each of the mortgage loans transferred and assigned
to the Trustee pursuant to Section 2.01 and from time to time held in the Trust
Fund. As used herein, the term "Mortgage Loan" includes the related Mortgage
Note, Mortgage and other security documents contained in the related Mortgage
File.
"Mortgage Loan Checklist": As defined in the definition of Mortgage
File.
"Mortgage Loan Purchase and Sale Agreement": The Mortgage Loan
Purchase and Sale Agreement dated as of March 14, 2006 between Bank of America
and the Depositor, the Mortgage Loan Purchase and Sale Agreement, dated as of
March 14, 2006, between SunTrust and the Depositor and the Mortgage Loan
Purchase and Sale Agreement, dated as of March 14, 2006, between Barclays and
the Depositor.
"Mortgage Loan Schedule": The list of Mortgage Loans transferred on
the Closing Date to the Trustee as part of the Trust Fund, which list is
attached hereto as Schedule I and may be amended from time to time in accordance
with Section 2.03(f). The Mortgage Loan Schedule shall set forth, among other
things, the following information with respect to each Mortgage Loan:
(i) the loan number, the control number and the trust mortgage
loan identification number;
(ii) the street address or addresses (including city, state
and zip code) of the related Mortgaged Property.
(iii) (a) the Mortgage Rate in effect as of the Cut-off Date
and (b) whether the Mortgage Loan accrues interest on the basis of
the actual number of days elapsed in the relevant month of accrual
and a 360-day year (an "Actual/360 Basis") or on the basis of a
360-day year consisting of twelve 30-day months (a "30/360 Basis");
(iv) the original principal balance;
(v) the Cut-off Date Balance;
(vi) the (A) remaining term to stated maturity and (B) Stated
Maturity Date;
(vii) the Due Date;
(viii) the amount of the Monthly Payment due on the first Due
Date following the Cut-off Date;
(ix) the Administrative Fee Rate (inclusive of the Master
Servicer Fee Rate, the Trustee Fee Rate, and the Primary Servicing
Fee Rate);
(x) the Primary Servicing Fee Rate;
(xi) the Master Servicing Fee Rate;
(xii) whether the Mortgagor's interest in the related
Mortgaged Property is or includes a Ground Lease;
(xiii) whether the Mortgage Loan is a Cross-Collateralized
Mortgage Loan and, if so, a reference to the other Mortgage Loans
that are cross collateralized with such Mortgage Loan;
(xiv) the original amortization term;
(xv) whether the Mortgage Loan is an ARD Loan;
(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, Barclays and SunTrust
Bank.
"Mortgage Note": The original executed note evidencing the
indebtedness of a Mortgagor under a Loan, together with any rider, addendum or
amendment thereto.
"Mortgage Pool": Collectively, all of the Mortgage Loans and any
successor REO Serviced Loans. The Mortgage Pool does not include any Companion
Loan or any related REO Serviced Loan.
"Mortgage Rate": With respect to (i) any Loan on or prior to its
Stated Maturity Date, the annualized rate at which interest is scheduled (in the
absence of a default) to accrue on such Loan from time to time in accordance
with the terms of the related Mortgage Note (as such may be modified at any time
following the Closing Date) and applicable law, (ii) any Loan after its Stated
Maturity Date, the annualized rate described in clause (i) above determined
without regard to the passage of such Stated Maturity Date, and (iii) any REO
Serviced Loan, the annualized rate described in clause (i) or (ii) above, as
applicable, determined as if the related Loan had remained outstanding.
"Mortgaged Property": Individually and collectively, as the context
may require, each real property (together with all improvements and fixtures
thereon) subject to the lien of a Mortgage and constituting collateral for a
Loan. With respect to any Cross-Collateralized Mortgage Loan, as the context may
require, "Mortgaged Property" may mean, collectively, all the Mortgaged
Properties securing such Cross-Collateralized Mortgage Loan.
"Mortgagor": The obligor or obligors on a Mortgage Note, including
without limitation, any Person that has acquired the related Mortgaged Property
and assumed the obligations of the original obligor under the Mortgage Note.
"Net Aggregate Prepayment Interest Shortfall": With respect to any
Distribution Date, the amount, if any, by which (a) the aggregate of all
Prepayment Interest Shortfalls incurred in connection with the receipt of
Principal Prepayments during the related Collection Period, exceeds (b) the
amount of the Compensating Interest Payment remitted by the Master Servicer
pursuant to Section 3.19(e) on the Master Servicer Remittance Date related to
such Distribution Date.
"Net Assumption Fee": As defined in Section 3.08.
"Net Assumption Application Fee": As defined in Section 3.08.
"Net Cash Flow": With respect to any Mortgaged Property, the total
operating revenues derived from such Mortgaged Property, minus the total fixed
and variable operating expenses, capital expenditures such as reserves, tenant
improvements and leasing commissions, incurred in respect of such Mortgaged
Property (subject to adjustments for, among other things, (i) non cash items
such as depreciation and amortization, and (ii) debt service on loans secured by
the Mortgaged Property).
"Net Default Charges": With respect to any Serviced Loan or REO
Serviced Loan, the Default Charges referred to in clause sixth of Section
3.27(a) and Section 3.27(c), which are payable to the Master Servicer as
Additional Master Servicing Compensation or the Special Servicer as Additional
Special Servicing Compensation.
"Net Investment Earnings": With respect to any Investment Account
for any Collection Period, the amount, if any, by which the aggregate of all
interest and other income realized during such Collection Period on funds held
in such Investment Account, exceeds the aggregate of all losses and investment
costs, if any, incurred during such Collection Period in connection with the
investment of such funds in accordance with Section 3.06.
"Net Investment Loss": With respect to any Investment Account for
any Collection Period, the amount by which the aggregate of all losses and
investment costs, if any, incurred during such Collection Period in connection
with the investment of funds held in such Investment Account in accordance with
Section 3.06, exceeds the aggregate of all interest and other income realized
during such Collection Period on such funds, but Net Investment Loss shall not
include any loss with respect to such investment that is incurred solely as a
result of the insolvency of the federally or state chartered depository
institution or trust company that holds such Investment Account so long as such
depository institution or trust company satisfied the qualifications set forth
in the definition of Eligible Account at the time such investment was made and
so long as such depository institution or trust company is not an Affiliate of
either the Master Servicer or the Special Servicer.
"Net Liquidation Proceeds": The excess, if any, of all Liquidation
Proceeds received with respect to any Specially Serviced Loan or REO Property,
over the amount of all Liquidation Expenses incurred with respect thereto and
all related Servicing Advances reimbursable therefrom.
"Net Modification Fee": As defined in Section 3.20(h).
"Net Modification Application Fee": As defined in Section 3.20(h).
"Net Mortgage Rate": With respect to any Loan or any related REO
Serviced Loan, as of any date of determination, a rate per annum equal to the
related Mortgage Rate then in effect minus the related Administrative Fee Rate,
if applicable. For purposes of calculating the Pass-Through Rate for each Class
of Certificates (other than the Class V Certificates and the Residual
Certificates) from time to time, the Net Mortgage Rate for any Mortgage Loan
will be calculated without regard to any modification, waiver or amendment of
the terms of such Mortgage Loan subsequent to the Closing Date.
"Net Operating Income": With respect to any Mortgaged Property, the
total operating revenues derived from such Mortgaged Property for a specified
period, minus the total fixed and variable operating expenses incurred in
respect of such Mortgaged Property (subject to adjustments for, and excluding,
among other things, (i) non-cash items such as depreciation and amortization,
(ii) capital expenditures (inclusive of replacement reserves) and (iii) debt
service on loans secured by the Mortgaged Property).
"New Lease": Any lease of REO Property (other than any REO Property
related to a Non-Serviced Mortgage Loan) entered into at the direction of the
Special Servicer on behalf of the Trust (and any related Companion Loan Holder,
to the extent of its interest), including any lease renewed, modified or
extended on behalf of the Trust, if the Trust has the right to renegotiate the
terms of such lease.
"Non-Investment Grade Sequential Pay Certificates": The Class K,
Class L, Class M, Class N, Class O, Class P and Class Q Certificates.
"Non-Partitioned Loans": Each Mortgage Loan, other than the
KinderCare Portfolio Pari Passu Note A-2 Mortgage Loan, the Desert Passage Pari
Passu Note A-1 Mortgage Loan, and the Torre Mayor Pari Passu Note A-2 Mortgage
Loan.
"Non-Registered Certificate": Unless and until registered under the
Securities Act, any Class XC, Class E, Class F, Class G, Class H, Class J, Class
K, Class L, Class M, Class N, Class O, Class P, Class Q, Class V, Class R-I,
Class R-II and Class R-TM Certificate.
"Non-Serviced Mortgage Loans": Each of the KinderCare Portfolio Pari
Passu Note A-2 Mortgage Loan and the Torre Mayor Pari Passu Note A-2 Mortgage
Loan.
"Non-Serviced Mortgage Loan Master Servicer": With respect to any
Non-Serviced Mortgage Loan, the "master servicer" designated under the related
Non-Serviced Mortgage Loan Pooling Agreement.
"Non-Serviced Mortgage Loan Pooling Agreement": Either the
KinderCare Portfolio Pooling Agreement or the Torre Mayor Pooling Agreement.
"Non-Serviced Mortgage Loan Primary Servicing Fee": With respect to
a Non-Serviced Mortgage Loan, the servicer fee applicable to such Non-Serviced
Mortgage Loan as provided in the related Non-Serviced Mortgage Loan Pooling
Agreement.
"Non-Serviced Mortgage Loan Primary Servicing Fee Rate": The rate at
which the Non-Serviced Mortgage Loan Primary Servicing Fee accrues, as set forth
in the Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
"Non-Serviced Mortgage Loan Special Servicer": With respect to any
Non-Serviced Mortgage Loan, the "special servicer" designated under the related
Non-Serviced Mortgage Loan Pooling Agreement.
"Non-Serviced Mortgage Loan Trustee": With respect to any
Non-Serviced Mortgage Loan, the "trustee" designated under the related
Non-Serviced Mortgage Loan Pooling Agreement.
"Non-U.S. Person": Any person other than a U.S. Person.
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance.
"Nonrecoverable P&I Advance": As evidenced by the Officer's
Certificate and supporting documentation contemplated by Section 4.03(c), any
P&I Advance previously made or to be made in respect of any Mortgage Loan or any
REO Serviced Loan that, as determined by the Master Servicer, the Special
Servicer or, if applicable, the Trustee, in its reasonable, good faith judgment,
based on at least an Appraisal conducted within the 12 months preceding any such
determination, will not be ultimately recoverable (together with Advance
Interest accrued thereon) from Default Charges, Insurance Proceeds, Condemnation
Proceeds, Liquidation Proceeds or any other recovery on or in respect of such
Mortgage Loan; provided, however, that the Special Servicer may, at its option,
in consultation with the Directing Certificateholder, make a determination in
accordance with the Servicing Standard, that any P&I Advance previously made or
proposed to be made is a Nonrecoverable P&I Advance and shall deliver to the
Master Servicer and the Trustee notice of such determination and any such
determination shall be conclusive and binding on the Master Servicer and the
Trustee.
"Nonrecoverable Servicing Advance": (a) Any Servicing Advance made
or proposed to be made in respect of a Serviced Loan or REO Property that, as
determined by the Master Servicer or, if applicable, the Special Servicer or the
Trustee in its reasonable and good faith judgment, will not be recoverable
(together with Advance Interest accrued thereon), or that in fact was not
ultimately recovered, from Default Charges, Insurance Proceeds, Liquidation
Proceeds or any other recovery on or in respect of such Serviced Loan or REO
Property (without giving effect to potential recoveries on deficiency judgments
or recoveries from guarantors); provided, however, that the Special Servicer
may, at its option, make a determination in accordance with the Servicing
Standard and Section 3.11(h), that any Servicing Advance previously made or
proposed to be made is a Nonrecoverable Servicing Advance and shall deliver to
the Master Servicer and the Trustee notice of such determination and any such
determination shall be conclusive and binding on the Master Servicer and the
Trustee; and (b) any KinderCare Portfolio Nonrecoverable Servicing Advance or
Torre Mayor Nonrecoverable Servicing Advance (including interest thereon
calculated in accordance with the KinderCare Portfolio Pooling Agreement or
Torre Mayor Pooling Agreement, as applicable). The determination as to the
recoverability of any servicing advance previously made or proposed to be made
in respect of (i) the KinderCare Portfolio Pari Passu Note A-2 Mortgage Loan
shall be made by the KinderCare Portfolio Master Servicer, the KinderCare
Portfolio Special Servicer or the KinderCare Portfolio Trustee, as the case may
be, pursuant to the KinderCare Portfolio Pooling Agreement and (ii) the Torre
Mayor Pari Passu Note A-2 Mortgage Loan shall be made by the Torre Mayor Master
Servicer, the Torre Mayor Special Servicer or the Torre Mayor Trustee, as the
case may be, pursuant to the Torre Mayor Pooling Agreement. Any such
determination made by the KinderCare Portfolio Master Servicer, the KinderCare
Portfolio Special Servicer or the KinderCare Portfolio Trustee or the Torre
Mayor Master Servicer, the Torre Mayor Special Servicer or the Torre Mayor
Trustee, as the case may be, shall be conclusive and binding on the
Certificateholders.
"North Park Towers Mezzanine Intercreditor Agreement": That certain
Intercreditor and Note Subordination Agreement, dated as of December 8, 2005, by
and between Bank of America, National Association as "Senior Lender" and the
North Park Towers Mezzanine Loan Holder as "Mezzanine Lender".
"North Park Towers Mezzanine Loan": That certain mezzanine loan
related to the North Park Towers Mortgage Loan, which is evidenced by 17
promissory notes, each dated as of December 8, 2005, by and between BR-North
Park Towers, LLC and the North Park Towers Mezzanine Loan Holder.
"North Park Towers Mezzanine Loan Holder": Collectively, Xxxxxxx
Towers, LLC, Ruddy Towers, LLC, Kamfar Towers, LLC, Xxxxxxx Towers, LLC, Four B
Towers, LLC, 5 Harrison Towers, LLC, Xxxxxxxxx Towers, LLC, Xxxxx Xxxxxx, LLC,
Four B Towers II, LLC, Four B Towers III, LLC, Xxxxx Xxxxxx XX, LLC, Xxxxx
Xxxxxx III, LLC, Xxxxx Xxxxxx XX, LLC, Xxxxx Xxxxxx III, LLC, River Towers, LLC,
River Towers II, LLC, and River Towers III, LLC, and their permitted successors
or assigns.
"North Park Towers Mortgage Loan": That certain Mortgage Loan
identified as Loan No. 59480 on the Mortgage Loan Schedule.
"Note B": With respect to the Torre Mayor Whole Loan, the Torre
Mayor Note B.
"Note B Holder": With respect to the Torre Mayor Whole Loan, the
Torre Mayor Note B Holder.
"Note C": With respect to the Torre Mayor Whole Loan, the Torre
Mayor Note C.
"Note C Holder": With respect to the Torre Mayor Whole Loan, the
Torre Mayor Note C Holder.
"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.
"Operating Advisor": With respect to any Whole Loan, the advisor
elected pursuant to Section 3.29 .
"Opinion of Counsel": A written opinion of counsel (who must, in
connection with any opinion rendered pursuant hereto with respect to tax matters
or a resignation under Section 6.04, be Independent counsel, but who otherwise
may be salaried counsel for the Depositor, the Trustee, the REMIC Administrator,
the Master Servicer or the Special Servicer), which written opinion is
acceptable and delivered to the addressee(s).
"Option Holder": As defined in Section 3.18(c).
"Option Period": As defined in Section 3.18(c).
"Option Price": As defined in Section 3.18(c).
"OTS": The Office of Thrift Supervision or any successor thereto.
"Ownership Interest": As to any Certificate, any ownership or
security interest in such Certificate as the Holder thereof and any other
interest therein, whether direct or indirect, legal or beneficial, as owner or
as pledgee.
"P&I Advance": As to any Serviced Loan or REO Serviced Loan, any
advance made by the Master Servicer or the Trustee pursuant to Section 4.03.
"Pass-Through Rate": With respect to any Class of Sequential Pay
Certificates and the Class A-SBFL 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 A-SBFL Regular Interest, a fixed rate equal to
5.3280% per annum. 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 Serviced Loan": With respect to any Master
Servicer Remittance Date, any Serviced Loan having any Monthly Payment remaining
unpaid past its Due Date and past any applicable grace period for such Monthly
Payment as of the Determination Date on the same calendar month.
"Payment Priority": With respect to any Class of Certificates (other
than the Class V Certificates), the priority of the Holders thereof in respect
of the Holders of the other Classes of Certificates to receive distributions out
of the Available Distribution Amount for any Distribution Date. The Payment
Priority of the respective Classes of Certificates shall be, in descending
order, as follows: first, the respective Classes of Senior Certificates; second,
the Class A-M Certificates; third, the Class A-J Certificates; fourth the Class
B Certificates; fifth, the Class C Certificates; sixth, the Class D
Certificates; seventh, the Class E Certificates; eighth, the Class F
Certificates; ninth, the Class G Certificates; tenth, the Class H Certificates;
eleventh, the Class J Certificates; twelfth, the Class K Certificates;
thirteenth, the Class L Certificates; fourteenth, the Class M Certificates;
fifteenth, the Class N Certificates; sixteenth, the Class O Certificates;
seventeenth, the Class P Certificates; eighteenth, the Class Q 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 Serviced Loan": As of any date of determination, any
Serviced Loan as to which no Servicing Transfer Event then exists.
"Performing Party": As defined in Section 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) above, provided that the long-term unsecured debt obligations
of the party agreeing to repurchase such obligations are rated "Aaa" by
Moody's and "AAA" by S&P;
(c) federal funds, uncertificated certificates of deposit, time
deposits and bankers' acceptances (having original maturities of not more
than 365 days) of any bank or trust company organized under the laws of
the United States or any state, provided that the short-term unsecured
debt obligations of such bank or trust company are rated no less than
"P-1" by Moody's and "A-1+" by S&P;
(d) commercial paper (having original maturities of not more than
365 days) of any corporation incorporated under the laws of the United
States or any state thereof rated no less than "P-1" by Moody's, and
"A-1+" by S&P;
(e) units of money market funds that maintain a constant asset value
and that are rated in the highest applicable rating category by each of
S&P (i.e., "AAAm" or "AAAmG") and Moody's (or if not rated by Moody's a
confirmation from Moody's that such money market fund is acceptable); and
(f) any other obligation or security that would not result in the
downgrade, qualification (if applicable) or withdrawal of the rating then
assigned by any of the Rating Agencies to any Class of Certificates or
Serviced Companion Loan Securities, evidence of which shall be confirmed
in writing by each Rating Agency to the Trustee;
provided that no investment described hereunder shall evidence either the right
to receive (a) only interest with respect to such investment or (b) a yield to
maturity greater than 120% of the yield to maturity at par of the underlying
obligations; and provided, further, that no investment described hereunder may
be purchased at a price greater than par if such investment may be prepaid or
called at a price less than its purchase price prior to stated maturity; and
provided, further, that each investment described hereunder shall, by its terms,
have a predetermined fixed amount of principal due at maturity (that cannot vary
or change) and either a fixed interest rate or variable interest rate tied to a
single interest rate index plus a single fixed spread; and provided, further,
that each investment described hereunder shall be a "cash flow investment", as
defined in the REMIC Provisions; and provided, further, that no investment
described hereunder shall have a maturity in excess of one year; and provided,
further, that no investment described hereunder shall be liquidated prior to its
maturity date; and provided, further, that no investment described hereunder may
have an "r" highlighter or other comparable qualifier attached to its rating.
"Permitted Mezzanine Loan Holder": With respect to the Mezzanine
Loans, any "qualified transferee" with respect to which each Rating Agency has
confirmed in writing that the holding of the related Mezzanine Loan by such
Person would not cause a qualification, downgrade or withdrawal of any of such
Rating Agency's then-current ratings on the Certificates or that otherwise meets
the qualifications set forth in the related Mezzanine Intercreditor Agreement to
be a "qualified transferee".
"Permitted Transferee": Any Transferee of a Residual Certificate
other than any of a Plan or a Person acting on behalf of or using the assets of
a Plan, a Disqualified Organization, a Disqualified Non-U.S. Person, an entity
treated as a U.S. partnership for federal income tax purposes if any of its
direct or indirect partners (other than through a U.S. corporation) is a
Disqualified Non-U.S. Person or a U.S. Person with respect to whom income on a
Residual Certificate is attributable to a foreign permanent establishment or
fixed base, within the meaning of an applicable income tax treaty, of such
Person or any other U.S. Person or any nominee, agent or middleman of any of the
above.
"Person": Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, limited
liability company or government or any agency or political subdivision thereof.
"Phase I Environmental Assessment": A "Phase I assessment" or, in
the case of any Serviced Loan having an initial principal balance under
$1,000,000, a transaction screen, as described in, and meeting the criteria of
the American Society for Testing and 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 "Midland Loan Services, Inc., as Special Servicer, for the benefit of
Xxxxx Fargo Bank, N.A., as Trustee, in trust for registered Holders of Banc of
America Commercial Mortgage Inc. Commercial Mortgage Pass-Through Certificates,
Series 2006-1, 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 Torre Mayor Loan REMIC Regular Interest, the REMIC I Regular
Interests, the REMIC II Regular Certificates and the Class A-SBFL Regular
Interest for federal income tax purposes.
"Prepayment Interest Excess": With respect to any Serviced Loan that
was subject to a Principal Prepayment in full or in part made on or prior to the
Determination Date in any calendar month but after such Serviced Loan's Due
Date, any payment of interest (net of related Master Servicing Fees and Excess
Interest and exclusive of Prepayment Premiums) actually collected from the
related Mortgagor from and after such Due Date.
"Prepayment Interest Shortfall": With respect to any Serviced Loan
that was subject to a Principal Prepayment in full or in part made after the
Determination Date in any calendar month, the amount of uncollected interest
(determined without regard to any Prepayment Premium that may have been
collected and exclusive of, in the case of an ARD Loan after its Anticipated
Repayment Date, Excess Interest) that would have accrued at a per annum rate
equal to the sum of the Net Mortgage Rate for such Serviced Loan plus the
Trustee Fee Rate, on the amount of such Principal Prepayment during the period
commencing on the date as of which such Principal Prepayment was applied to such
Serviced Loan and ending on the last day of such calendar month, inclusive.
"Prepayment Premium": Any premium, penalty or fee paid or payable,
as the context requires, by a Mortgagor in connection with a Principal
Prepayment on, or other early collection of principal of, a Loan or any
successor REO Serviced Loan.
"Primary Collateral": The Mortgaged Property directly securing a
Cross-Collateralized Mortgage Loan excluding, however, any Mortgaged Property as
to which the related lien may only be foreclosed upon solely because of the
cross-collateralization of such Mortgage Loans.
"Primary Servicing Fee": With respect to each Mortgage Loan that is
subject to a Sub-Servicing Agreement as of the Closing Date, the monthly fee
payable to the Sub-Servicer by the Master Servicer from the Master Servicing
Fee, which monthly fee accrues at the Primary Servicing Fee Rate.
"Primary Servicing Fee Rate": With respect to each Mortgage Loan
that is subject to a Sub-Servicing Agreement as of the Closing Date, the rate
per annum specified as such in the Mortgage Loan Schedule.
"Primary Servicing Office": With respect to the Master Servicer, the
office thereof primarily responsible for performing its respective duties under
this Agreement, initially located in Charlotte, North Carolina, and, with
respect to the Special Servicer, the office thereof primarily responsible for
performing its respective duties under this Agreement, initially located in
Kansas.
"Principal Distribution Amount": With respect to any Distribution
Date and in respect of any Mortgage Loan, the aggregate of the Current Principal
Distribution Amount for such Distribution Date and, if such Distribution Date is
subsequent to the initial Distribution Date, the excess, if any, of the
Principal Distribution Amount for the preceding Distribution Date, over the
aggregate distributions of principal made on the Sequential Pay Certificates on
the preceding Distribution Date; provided that the Principal Distribution Amount
for any Distribution Date shall be reduced by the amount of any reimbursements
of Nonrecoverable Advances or Workout-Delayed Reimbursement Amounts plus
interest on such Nonrecoverable Advances or Workout-Delayed Reimbursement
Amounts that are paid or reimbursed from principal collections on the Mortgage
Loans in a period during which such principal collections would have otherwise
been included in the Principal Distribution Amount for such Distribution Date
(provided, that if any of the amounts that were reimbursed from principal
collections on the Mortgage Loans are subsequently recovered on the related
Mortgage Loan, such recovery will increase the Principal Distribution Amount for
the Distribution Date related to the period in which such recovery occurs).
"Principal 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
February 28, 2006, relating to the Class X-0, Xxxxx X-0, Class A-3A, Class X-0X,
Xxxxx X-0, Class A-1A, Class A-M, Class A-J, Class XP, Class B, Class C and
Class D 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 (including, in the
case of a Non-Serviced Mortgage Loan, the pro rata portion, based on the related
Stated Principal Balance, of any servicing advance made pursuant to the related
Non-Serviced Mortgage Loan Pooling Agreement that is allocable to such
Non-Serviced Mortgage Loan and unpaid fees payable to the Non-Serviced Mortgage
Loan Servicer or the Non-Serviced Mortgage Loan Special Servicer), (c) all
accrued and unpaid Advance Interest in respect of related Advances, (d) any
Additional Trust Fund Expenses in respect of such Mortgage Loan (including any
Additional Trust Fund Expenses previously reimbursed or paid by the Trust Fund
but not so reimbursed by the related Mortgagor or other party or from Insurance
Proceeds or Condemnation Proceeds or otherwise), (e) Liquidation Fees (if any)
payable in connection with a purchase of a Mortgage Loan and (f) any cost, fees
and expenses of enforcement (including attorneys fees) of a repurchase
obligation pursuant to Section 2.03(h). With respect to any REO Property, a
price equal to the unpaid principal balance of the related REO Serviced Loan as
of the date of purchase, together with (a) all accrued and unpaid interest
(excluding, in the case of an ARD Loan after its Anticipated Repayment Date,
Excess Interest) on such REO Serviced Loan at the related Mortgage Rate to but
not including the Due Date in the Collection Period of purchase, (b) all related
Servicing Advances that are unreimbursed from related collections on such REO
Property, (c) all accrued and unpaid Advance Interest in respect of related
Advances, (d) any Additional Trust Fund Expenses in respect of such REO Property
(including any Additional Trust Fund Expenses previously reimbursed or paid by
the Trust Fund but not so reimbursed by the related Mortgagor or other party or
from Insurance Proceeds or Condemnation Proceeds or otherwise), (e) Liquidation
Fees (if any) payable in connection with a purchase of a Mortgage Loan and (f)
any cost, fees and expenses of enforcement (including attorneys fees) of a
repurchase obligation pursuant to Section 2.03. The Purchase Price of any
Mortgage Loan or REO Property is intended to include, without limitation,
principal and interest previously advanced with respect thereto and not
previously reimbursed.
"Qualified Appraiser": In connection with the appraisal of any Loan,
Mortgaged Property or REO Property, an Independent MAI-designated appraiser with
at least five years of experience in respect of the relevant geographic location
and property type.
"Qualified Bidder": As defined in Section 7.01(d).
"Qualified Institutional Buyer": As defined in Section 5.02(b).
"Qualified Insurer": An insurance company or security or bonding
company qualified to write the related Insurance Policy in the relevant
jurisdiction.
"Qualifying Substitute Mortgage Loan": In connection with the
replacement of a Defective Mortgage Loan as contemplated by Section 2.03, any
other mortgage loan that, on the date of substitution, (i) has a principal
balance, after deduction of the principal portion of any unpaid Monthly Payment
due on or before the date of substitution, not in excess of the Stated Principal
Balance of the Defective Mortgage Loan; (ii) is accruing interest at a fixed
rate of interest at least equal to that of the Defective Mortgage Loan; (iii)
has the same Due Date as, and a grace period for delinquent Monthly Payments
that is no longer than, the Due Date and grace period, respectively, of the
Defective Mortgage Loan; (iv) is accruing interest on the same basis as the
Defective Mortgage Loan (for example, on the basis of a 360-day year consisting
of twelve 30-day months); (v) has a remaining term to stated maturity not
greater than, and not more than two years less than, that of the Defective
Mortgage Loan and, in any event, has a maturity date not later than two years
prior to the Rated Final Distribution Date; (vi) has a then current
loan-to-value ratio not higher than, and a then current debt service coverage
ratio not lower than, the loan-to-value ratio and debt service coverage ratio,
respectively, of the Defective Mortgage Loan as of the Closing Date; (vii) has
comparable prepayment restrictions to those of the Defective Mortgage Loan,
(viii) will comply (except in a manner that would not be adverse to the
interests of the Certificateholders (as a collective whole) in or with respect
to such mortgage loan), as of the date of substitution, with all of the
representations relating to the Defective Mortgage Loan set forth in or made
pursuant to the related Mortgage Loan Purchase and Sale Agreement; (ix) has a
Phase I Environmental Assessment and a property condition report relating to the
related Mortgaged Property in its Servicing File, which Phase I Environmental
Assessment will evidence that there is no material adverse environmental
condition or circumstance at the related Mortgaged Property for which further
remedial action may be required under applicable law, and which property
condition report will evidence that the related Mortgaged Property is in good
condition with no material damage or deferred maintenance; and (x) constitutes a
"qualified replacement mortgage" within the meaning of Section 860G(a)(4) of the
Code; provided, however, that if more than one mortgage loan is to be
substituted for any Defective Mortgage Loan, then all such proposed Replacement
Mortgage Loans shall, in the aggregate, satisfy the requirement specified in
clause (i) of this definition and each such proposed Replacement Mortgage Loan
shall, individually, satisfy each of the requirements specified in clauses (ii)
through (x) of this definition; and provided, further, that no mortgage loan
shall be substituted for a Defective Mortgage Loan unless (x) such prospective
Replacement Mortgage Loan shall be acceptable to the Directing Certificateholder
(or, if there is no Directing Certificateholder then serving, to the Holders of
Certificates representing a majority of the Voting Rights allocated to the
Controlling Class), in its (or their) sole discretion, and (y) each Rating
Agency shall have confirmed in writing to the Trustee that such substitution
will not in and of itself result in an Adverse Rating Event with respect to any
Class of Rated Certificates (such written confirmation to be obtained by, and at
the expense of, the related Mortgage Loan Seller effecting the substitution).
"Rated Certificate": Any of the Certificates to which a rating has
been assigned by either Rating Agency at the request of the Depositor.
"Rated Final Distribution Date": As to each Class of Certificates,
the Distribution Date in September 2045.
"Rating Agency": (i) Each of Xxxxx'x and S&P and (ii) as to any
provisions relating to any Serviced Companion Loan that secures Serviced
Companion Loan Securities, each rating agency then rating any related class of
such Serviced Companion Loan Securities or their successors in interest.
"Rating Agency Trigger Event": The reduction of the Class A-SBFL
Swap Counterparty's long-term ratings below "A3" by Xxxxx'x or "A-" by S&P for
the Class A-SBFL Swap Contract.
"Realized Loss": With respect to each Defaulted Serviced Loan as to
which a Final Recovery Determination has been made, or with respect to any
related REO Serviced Loan as to which a Final Recovery Determination has been
made as to the related REO Property, an amount (not less than zero) equal to (i)
the unpaid principal balance of such Serviced Loan or REO Serviced Loan, as the
case may be, as of the Due Date related to the Collection Period in which the
Final Recovery Determination was made, plus (ii) all accrued but unpaid interest
on such Serviced Loan or REO Serviced Loan, as the case may be, at the related
Mortgage Rate to but not including the Due Date related to the Collection Period
in which the Final Recovery Determination was made, plus (iii) any related
unreimbursed Servicing Advances as of the commencement of the Collection Period
in which the Final Recovery Determination was made, together with any new
related Servicing Advances made during such Collection Period, minus (iv) all
payments and proceeds, if any, received in respect of such Collection Period
related to the Serviced Loan or REO Serviced Loan, as the case may be, during
the Collection Period in which such Final Recovery Determination was made (net
of any related Liquidation Expenses paid therefrom).
With respect to any Serviced Loan as to which any portion of the
outstanding principal or accrued interest owed thereunder was forgiven in
connection with a bankruptcy or similar proceeding involving the related
Mortgagor or a modification, waiver or amendment of such Serviced Loan granted
or agreed to by the Master Servicer or Special Servicer pursuant to Section
3.20, the amount of such principal or past due interest (other than any Default
Interest) so forgiven.
With respect to any Serviced Loan as to which the Mortgage Rate
thereon has been permanently reduced and not recaptured for any period in
connection with a bankruptcy or similar proceeding involving the related
Mortgagor or a modification, waiver or amendment of such Serviced Loan granted
or agreed to by the Master Servicer or Special Servicer pursuant to Section
3.20, the amount of the consequent reduction, if any, in the interest portion of
each successive Monthly Payment due thereon. Each such Realized Loss shall be
deemed to have been incurred on the Due Date for each affected Monthly Payment.
With respect to any Serviced Whole Loan, Realized Losses shall be
deemed allocated first to the related Subordinate Interest, if any, and then to
the related senior Loan(s).
With respect to the KinderCare Portfolio Pari Passu Note A-2
Mortgage Loan, Realized Losses shall be calculated in accordance with the
KinderCare Portfolio Pooling Agreement. Such Realized Losses shall be allocated
as provided in the KinderCare Portfolio Pooling Agreement and the KinderCare
Portfolio Intercreditor Agreement and further allocated to the Certificates as
provided in this Agreement.
With respect to the Torre Mayor Pari Passu Note A-2 Mortgage Loan,
Realized Losses shall be calculated in accordance with the Torre Mayor Pooling
Agreement. Such Realized Losses shall be allocated as provided in the Torre
Mayor Pooling Agreement and the Torre Mayor Intercreditor Agreement and 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. 1,506 - 1,531 (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 Majority Mortgage Loans (other than Excess Interest) as
from time to time are subject to this Agreement and all payments under and
proceeds of such Mortgage Loans received or receivable after the Cut-off Date
(other than payments of principal, interest and other amounts due and payable on
such Mortgage Loans on or before the Cut-off Date), together with all documents,
Escrow Payments and Reserve Funds delivered or caused to be delivered hereunder
by the Mortgage Loan Sellers with respect to such Mortgage Loans, (ii) the Torre
Mayor Loan REMIC Regular Interest; (iii) any REO Property acquired in respect of
a Majority Mortgage Loan and all payments and proceeds of such REO Property;
(iv) the rights of the Depositor under Sections 2, 3, 4, 11, 12, 13, 14, 15, 16,
17, 18, 19, 20, 21 and 22 of the Mortgage Loan Purchase and Sale Agreements, and
(v) such amounts on or with respect to clauses (i), or (ii) as from time to time
are deposited into the Distribution Account, the Certificate Account, the
Interest Reserve Account and the REO Account (if established) and the Excess
Liquidation Proceeds Account (if established) (other than the portion thereof
beneficially owned by the Holders of the Class R-TM Certificates pursuant to
Section 3.04(c)(iv)), and in the case of a Serviced Whole Loan, to the extent of
the Trust's interest in each of the foregoing.
"REMIC I Distribution Account": The segregated account or accounts
created and maintained as a separate trust account or accounts by the Trustee
pursuant to Section 3.04, which shall be entitled "Xxxxx Fargo Bank, N.A., as
Trustee, in trust for Holders of Banc of America Commercial Mortgage Inc.
Commercial Mortgage Pass-Through Certificates, Series 2006-1, 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, Class R-TM 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 2006-1, 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 (other
than any REO Property related to a Non-Serviced Mortgage Loan), 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 Serviced Whole Loan REO
Account, as applicable.
"REO Acquisition": The acquisition of an REO Property for federal
income tax purposes pursuant to Treasury Regulations Section 1.856-6.
"REO Disposition": The sale or other disposition of the REO Property
pursuant to Section 3.18.
"REO Extension": As defined in Section 3.16(a).
"REO Property": A Mortgaged Property acquired by the Special
Servicer on behalf of the Trustee for the benefit of the Certificateholders
(and, in the case of a related Mortgaged Property securing a Whole Loan, for the
benefit of the Certificateholders and the related Companion Loan Holder(s), as
their interests may appear, and, in the case of the KinderCare Portfolio Pari
Passu Note A-2 Mortgage Loan and the Torre Mayor Pari Passu Note A-2 Mortgage
Loan, the beneficial interest of the Trust Fund in the related Mortgaged
Property if it is acquired by the KinderCare Portfolio Special Servicer or the
Torre Mayor Special Servicer, as applicable, for the benefit of the
Certificateholders and the KinderCare Portfolio Pari Passu Noteholders or the
Torre Mayor Noteholders, as applicable) pursuant to Section 3.09 through
foreclosure, acceptance of a deed-in-lieu of foreclosure or otherwise in
accordance with applicable law in connection with the default or imminent
default of a Loan.
"REO Revenues": All income, rents, profits and proceeds derived from
the ownership, operation or leasing of any REO Property.
"REO Serviced Loan": The mortgage loan deemed for purposes hereof to
be outstanding with respect to each REO Property acquired in respect of any
Serviced Loan or, with respect to KinderCare Portfolio Pari Passu Note A-2
Mortgage Loan, which is serviced under the KinderCare Portfolio Pooling
Agreement, the Trust's interest in the "REO Property" acquired under the
KinderCare Portfolio Pooling Agreement relating to the KinderCare Portfolio
Whole Loan or, with respect to Torre Mayor Pari Passu Note A-2 Mortgage Loan,
which is serviced under the Torre Mayor Pooling Agreement, the Trust's interest
in the "REO Property" acquired under the Torre Mayor Pooling Agreement relating
to the Torre Mayor Whole Loan. Each REO Serviced Loan shall be deemed to have an
initial unpaid principal balance and Stated Principal Balance equal to the
unpaid principal balance and Stated Principal Balance, respectively, of the
predecessor Loan as of the date of the related REO Acquisition. In addition, all
Monthly Payments (other than any Balloon Payment), Assumed Monthly Payments (in
the case of a Balloon Loan delinquent in respect of its Balloon Payment) and
other amounts due and owing, or deemed to be due and owing, in respect of the
predecessor Serviced Loan as of the date of the related REO Acquisition, shall
be deemed to continue to be due and owing in respect of an REO Serviced Loan. In
addition, Nonrecoverable Advances (including interest on such Nonrecoverable
Advances) and Workout-Delayed Reimbursement Amounts with respect to such REO
Serviced Loan that were reimbursed from collections on the Serviced Loans and
resulted in principal distributed to the Certificateholders being reduced as a
result of the first proviso of the definition of "Principal Distribution
Amount", shall be deemed outstanding until recovered or until a Final Recovery
Determination is made. All amounts payable or reimbursable to the Master
Servicer, the Special Servicer and/or the Trustee in respect of the related
Serviced Loan as of the date of the related REO Acquisition, including, without
limitation, any unpaid Servicing Fees and any unreimbursed Advances, together
with any Advance Interest accrued and payable to the Master Servicer, the
Special Servicer and/or the Trustee in respect of such Advances, shall continue
to be payable or reimbursable to the Master Servicer, the Special Servicer
and/or the Trustee as the case may be, in respect of an REO Serviced Loan. If
the Loans comprising the Desert Passage Whole Loan become REO Serviced Loans,
amounts received by the Trust with respect to such REO Serviced Loans shall be
applied to amounts due and owing in respect of such REO Serviced Loans as
provided in Section 1 of the Desert Passage Intercreditor Agreement. Collections
in respect of each REO Serviced Loan (exclusive of the amounts to be applied to
the payment of, or to be reimbursed to the Master Servicer or the Special
Servicer for the payment of, Servicing Fees, Special Servicing Fees, Additional
Master Servicing Compensation, Additional Special Servicing Compensation,
Liquidation Fees, the costs of operating, managing, selling, leasing and
maintaining the related REO Property) shall be treated: first, as a recovery of
Nonrecoverable Advances (including interest on such Nonrecoverable Advance) and
Workout-Delayed Reimbursed Amounts with respect to such REO Serviced Loan, that
were reimbursed from collections on the Serviced Loans and resulted in principal
distributed to the Certificateholders being reduced as a result of the first
proviso of the definition of "Principal Distribution Amount"; second, as a
recovery of accrued and unpaid interest on such REO Serviced Loan at the related
Mortgage Rate in effect from time to time to but not including the Due Date in
the Collection Period of receipt; third, as a recovery of principal of such REO
Serviced Loan to the extent of its entire unpaid principal balance; fourth, in
accordance with the Servicing Standard of the Master Servicer or the Special
Servicer, as applicable, as a recovery of any other amounts due and owing in
respect of such REO Serviced Loan; fifth, as a recovery of any other amounts
deemed to be due and owing in respect of the related REO Serviced Loan (other
than, in the case of an REO Serviced Loan that relates to an ARD Loan after its
Anticipated Repayment Date, accrued and unpaid Excess Interest); and sixth, in
the case of an REO Serviced Loan that relates to an ARD Loan after its
Anticipated Repayment Date, as a recovery of any accrued and unpaid Excess
Interest on such REO Serviced Loan to but not including the date of receipt by
or on behalf of the Trust, in that order. If the KinderCare Portfolio Pari Passu
Note A-2 Mortgage Loan or the Torre Mayor Pari Passu Note A-2 Mortgage Loan
becomes an "REO Serviced Loan" as defined under the related Non-Serviced
Mortgage Loan Pooling Agreement, the treatment of the foregoing amounts with
respect to such Mortgage Loan shall be subject to the terms of the related
Intercreditor Agreement and the related Non-Serviced Mortgage Loan Pooling
Agreement.
"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 Serviced Loan": As defined in Section 3.19(b).
"Required Claims-Paying Ratings": With respect to any insurance
carrier, claims-paying ability ratings at least equal to the following minimum
ratings assigned to such carrier by at least one of the other following parties
and, in any event, by each Rating Agency that assigned a rating to the
claims-paying ability of such insurance carrier: Xxxxx'x ("A2" or better), S&P
("A" or better) and A.M. Best ("A: VIII" or better) or any insurance carrier
backed or guaranteed by an insurer with such required ratings; provided,
however, that a rating by A.M. Best shall be disregarded and shall not be
applicable as one of the two required ratings except with respect to a fidelity
bond or errors and omissions insurance maintained by a Sub-Servicer and then
only to the extent in force as of the Closing Date. Notwithstanding the
preceding sentence, an insurance carrier with lower or fewer claims-paying
ability ratings shall be deemed to have the "Required Claims-Paying Ratings" if
the applicable Rating Agency has confirmed in writing that such insurance
carrier shall not result, in and of itself, in a downgrading, withdrawal or
qualification (if applicable) of the then current rating assigned by such Rating
Agency to any Class of Certificates, or if the Desert Passage Whole Loan is
involved, the related Serviced Companion Loan Securities, 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, Class R-II or Class R-TM
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 Beach,
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 Global Securities and Trust Services Group, any vice
president, any assistant vice president, any assistant secretary, any assistant
treasurer, or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers to whom a
particular matter is referred by the Trustee because of such officer's knowledge
of and familiarity with the particular subject. When used with respect to any
Certificate Registrar (other than the Trustee), any officer or assistant officer
thereof.
"Restricted Period": The 40-day period prescribed by Regulation S
commencing on the later of (a) the date upon which the Certificates are first
offered to persons other than the managers and any other distributor (as defined
in Regulation S) of the Certificates, and (b) the Closing Date.
"Rule 144A": Rule 144A under the Securities Act.
"S&P": Standard & Poor's Ratings Services, a division of The McGraw
Hill Companies, Inc., or its successor in interest. If neither S&P nor any
successor remains in existence, "S&P" shall be deemed to refer to such other
nationally recognized statistical rating agency or other comparable Person
designated by the Depositor, notice of which designation shall be given to the
Trustee, the Master Servicer, the Special Servicer and the REMIC Administrator
and specific ratings of Standard & Poor's Ratings Services, a division of The
McGraw Hill Companies, Inc. herein referenced shall be deemed to refer to the
equivalent ratings of the party so designated.
"Xxxxxxxx-Xxxxx Act": The Xxxxxxxx-Xxxxx Act of 2002 and the rules
and regulations of the Commission promulgated thereunder (including any
interpretations thereof by the Commission's staff).
"Xxxxxxxx-Xxxxx Certification": As defined in Section 11.05(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-0X, Xxxxx
X-0X, Class A-SBFL, 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 Certificates, Class A-2 Certificates, Class A-3A Certificates, Class A-3B
Certificates, Class A-SBFL Regular Interest, Class A-4 Certificates 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 A-1 Certificates, Class A-2 Certificates, Class A-3A
Certificates, Class A-3B Certificates, Class A-SBFL Regular Interest, Class A-4
Certificates 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, Class P or Class Q Certificate.
"Serviced Companion Loan Holder": Any holder of a Serviced Companion
Loan.
"Serviced Companion Loans": Collectively, the Desert Passage Pari
Passu Note A-2 and the Desert Passage Pari Passu Note A-3.
"Serviced Companion Loan Securities": For so long as the Mortgage
Loan related thereto or any successor REO Serviced Loan thereof is part of the
Mortgage Pool, any class of securities backed by a Serviced Companion Loan. Any
reference herein to a "series" of Serviced Companion Loan Securities shall refer
to separate securitizations of one or more of the Serviced Companion Loans.
"Serviced Companion Loan Securitization Agreement": With respect to
any Serviced Pari Passu Companion Loan, any agreement under which any securities
evidencing interests in such Serviced Pari Passu Companion Loan are issued, as
from time to time amended, supplemented or modified.
"Serviced Companion Loan Service Provider": With respect to any
Serviced Companion Loan, the master servicer, primary servicer, special servicer
or trustee, as applicable, with respect to such Serviced Pari Passu Companion
Loan appointed and acting under the related Serviced Companion Loan
Securitization Agreement, if any.
"Serviced Companion Loan Trustee": With respect to any Serviced
Companion Loan, the trustee with respect to such Serviced Pari Passu Companion
Loan appointed and acting under the related Serviced Companion Loan
Securitization Agreement, if any.
"Serviced Loan": Any Mortgage Loan (other than the KinderCare
Portfolio Pari Passu Note A-2 Mortgage Loan and the Torre Mayor Pari Passu Note
A-2 Mortgage Loan) or Serviced Whole Loan.
"Serviced Pari Passu Companion Loan": Any of the Desert Passage Pari
Passu Note A-2 or the Desert Passage Pari Passu Note A-3, as the context may
require and as applicable.
"Serviced Pari Passu Companion Loan Holder": Any holder of a
Serviced Pari Passu Companion Loan.
"Serviced Whole Loan": The Desert Passage Whole Loan.
"Serviced Whole Loan Custodial Account": With respect to the
Serviced Whole Loan, the segregated account or accounts created and maintained
by the Master Servicer pursuant to Section 3.04(e) on behalf of the Desert
Passage Noteholders, which shall be entitled "Bank of America, National
Association, as Master Servicer, in trust for the Desert Passage Whole Loan
Noteholders, as their interests may appear". Any such account shall at all times
be an Eligible Account.
"Serviced Whole Loan Remittance Amount": With respect to any Master
Servicer Remittance Date and any Serviced Whole Loan, an amount equal to (a) all
amounts on deposit in the related Serviced Whole Loan Custodial Account as of
the commencement of business on such Master Servicer Remittance Date, net of (b)
any portion of the amounts described in clause (a) of this definition that
represents one or more of the following: (i) collected Monthly Payments that are
due on a Due Date following the end of the related Collection Period, (ii) any
unscheduled payments of principal (including, without limitation, Principal
Prepayments, 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 Serviced Whole Loan
Custodial Account pursuant to any of clauses (ii) through (xvii) of Section
3.05(f), (v) any Excess Liquidation Proceeds that are unrelated to such Serviced
Whole Loan, and (vi) any amounts deposited into the related Serviced Whole Loan
Custodial Account in error, provided that, with respect to the Master Servicer
Remittance Date that occurs in the same calendar month as the Final Distribution
Date, the Serviced Whole Loan Remittance Amount will be calculated without
regard to clauses (b)(i), (b)(ii) and (b)(iii) of this definition.
"Serviced Whole Loan REO Account": As defined in Section 3.16(b).
"Servicer Reports": Each of the (i) CMSA Delinquent Loan Status
Report, (ii) CMSA REO Status Report, (iii) CMSA Historical Loan Modification and
Corrected Mortgage Loan Report, (iv) CMSA Historical Liquidation Report, (v)
CMSA Comparative Financial Status Report, (vi) CMSA Servicer Watch List Report,
(vii) CMSA NOI Adjustment Worksheet, (viii) CMSA Operating Statement Analysis
Report, (ix) CMSA Loan Level Reserve-LOC Report, (x) CMSA Loan Periodic Update
File, (xi) CMSA Property File, (xii) CMSA Financial File and (xiii) CMSA Advance
Recovery Report.
"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 3.04(a).
"Servicing Advances": Subject to Section 3.19(d) and with respect to
any Serviced Loan, all customary, reasonable and necessary "out-of-pocket" costs
and expenses incurred or to be incurred, as the context requires, by the Master
Servicer or, with respect to the Specially Serviced Loans, by the Master
Servicer at the direction of the Special Servicer or by the Special Servicer
(or, if applicable, the Trustee) in connection with the servicing of a Serviced
Loan after a default, delinquency or other unanticipated event, or in connection
with the administration of any REO Property, including, but not limited to, the
cost of (a) compliance with the obligations of the Master Servicer set forth in
Sections 3.03(c) and 3.09, (b) the preservation, insurance, restoration,
protection and management of a Mortgaged Property, (c) obtaining any Liquidation
Proceeds or Insurance Proceeds in respect of any Serviced Loan or REO Property,
(d) any enforcement or judicial proceedings with respect to a Mortgaged
Property, including, without limitation, foreclosures, and (e) the operation,
management, maintenance and liquidation of any REO Property; provided that
notwithstanding anything herein to the contrary, "Servicing Advances" shall not
include allocable overhead of the Master Servicer or the Special Servicer (or
the Trustee, if applicable), such as costs for office space, office equipment,
supplies and related expenses, employee salaries and related expenses and
similar internal costs and expenses, or costs incurred by either such party in
connection with its purchase of any Serviced Loan or REO Property pursuant to
any provision of this Agreement. All Emergency Advances made by the Master
Servicer at the direction of the Special Servicer hereunder shall be considered
"Servicing Advances" for the purposes hereof.
"Servicing Criteria": The criteria set forth in paragraph (d) of
Item 1122 of Regulation AB as such may be amended from time to time.
"Servicing Fees": With respect to each Serviced Loan and REO
Serviced Loan, the Master Servicing Fee and the Special Servicing Fee.
"Servicing File": Any documents (other than documents required to be
part of the related Mortgage File), including, without limitation, the related
Phase I Environmental Site Assessment and any related environmental insurance or
endorsement, in the possession of the Master Servicer or the Special Servicer
and relating to the origination and servicing of any Mortgage Loan or the
administration of any REO Property.
"Servicing Function Participant": Any Additional Servicer,
Sub-Servicer, Subcontractor or any other Person, other than the Master Servicer,
the Special Servicer and the Trustee, that is performing activities that address
the Servicing Criteria, unless such Person's activities relate only to 5% or
less of the Mortgage Loans (by Stated Principal Balance).
"Servicing Officer": Any officer or authorized signatory of the
Master Servicer or the Special Servicer or any Additional Servicer involved in,
or responsible for, the administration and servicing of Loans, whose name and
specimen signature appear on a list of such officers and authorized signatories
furnished by such party to the Trustee and the Depositor on the Closing Date, as
such list may be amended from time to time thereafter.
"Servicing Released Bid": As defined in Section 7.01(d).
"Servicing Retained Bid": As defined in Section 7.01(d).
"Servicing Return Date": With respect to any Corrected Serviced
Loan, the date that servicing thereof is returned by the Special Servicer to the
Master Servicer pursuant to Section 3.21(a).
"Servicing Standard": With respect to each of the Master Servicer
and the Special Servicer subject to applicable law and the express terms of the
relevant Loans and in the case of a Serviced Whole Loan, the related
Intercreditor Agreement, to service and administer the Serviced Loans and any
REO Properties for which such Person is responsible hereunder: (a) with the same
care, skill, prudence and diligence as is normal and usual in its general
mortgage servicing and REO property management activities on behalf of third
parties or on behalf of itself, whichever is higher, with respect to mortgage
loans and REO properties that are comparable to those for which it is
responsible hereunder; (b) with a view to the timely collection of all scheduled
payments of principal and interest under the Serviced Loans, the full collection
of all Prepayment Premiums that may become payable under the Serviced Loans and,
in the case of the Special Servicer, if a Serviced Loan comes into and continues
in default and if, in the good faith and reasonable judgment of the Special
Servicer, no satisfactory arrangements can be made for the collection of the
delinquent payments (including payments of Prepayment Premiums), the
maximization of the recovery on such Serviced Loan to the Certificateholders,
and, in the case of a Serviced Whole Loan, on behalf of the related Companion
Loan Holder(s) as a collective whole, on a net present value basis; and (c)
without regard to: (i) any known relationship that the Master Servicer (or any
Affiliate thereof) or the Special Servicer (or any Affiliate thereof), as the
case may be, may have with the related Mortgagor or with any other party to this
Agreement; (ii) the ownership of any Certificate 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 Serviced
Loan, any of the following events:
(a) the related Mortgagor has failed to make when due any Monthly
Payment (including a Balloon Payment) or any other payment required under
the related loan documents, which failure continues, or the Master
Servicer 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 Serviced Loan or (ii) such default is likely to
remain unremedied for at least the period contemplated by clause (a) of
this definition; or
(c) the Master Servicer (or the Special Servicer with the consent of
the Directing Certificateholder) has determined, in its reasonable, good
faith judgment, that a default, other than as described in clause (a) or
(b) of this definition, has occurred or is imminent that may materially
impair the value of the related Mortgaged Property as security for the
Loan, which default has continued or is reasonably expected to continue
unremedied for the applicable cure period under the terms of the Serviced
Loan (or, if no cure period is specified, for 60 days); or
(d) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary action against the
related Mortgagor under any present or future U.S. or Mexican 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 Serviced Whole
Loan, the related Mortgage Loan and each related Companion Loan shall be deemed
to be a Specially Serviced Loan if any loan within the Serviced Whole Loan
becomes a Specially Serviced Loan.
A Servicing Transfer Event with respect to any Serviced Loan shall
cease to exist:
(w) in the case of the circumstances described in clause (a) above,
if and when the related Mortgagor has made three consecutive full and
timely Monthly Payments under the terms of such Loan (as such terms may be
changed or modified in connection with a bankruptcy or similar proceeding
involving the related Mortgagor or by reason of a modification, waiver or
amendment granted or agreed to by the Master Servicer or the Special
Servicer pursuant to Section 3.20);
(x) in the case of the circumstances described in clauses (b), (d),
(e) and (f) above, if and when such circumstances cease to exist in the
reasonable, good faith judgment of the Special Servicer;
(y) in the case of the circumstances described in clause (c) above,
if and when such default is cured in the reasonable, good faith judgment
of the Special Servicer; and
(z) in the case of the circumstances described in clause (g) above,
if and when such proceedings are terminated;
so long as at that time no circumstance identified in clauses (a) through (g)
above exists that would cause the Serviced Loan to continue to be characterized
as a Specially Serviced Loan and provided no additional default is foreseeable
in the reasonable good faith judgment of the Special Servicer.
"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 mortgage loan documents provide that such organizational
documents may not be amended without the consent of the lender as regards such
single purpose entity requirements.
"Single Certificate": For purposes of Section 4.02(a), a Certificate
of any Class of REMIC II Regular Certificates evidencing a $1,000 denomination
or, in the case of a Class X Certificate, a 100% Percentage Interest.
"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 and the Class A-SBFL Certificates have been
reduced to zero.
"Special Action": As defined in Section 3.21(e).
"Special Servicer": Midland Loan Services, Inc., its successors in
interest, or any successor special servicer appointed as herein provided.
"Special Servicing Fee": With respect to each Specially Serviced
Loan and each REO Serviced Loan, the fee designated as such and payable to the
Special Servicer pursuant to the first paragraph of Section 3.11(c).
"Special Servicing Fee Rate": With respect to each Specially
Serviced Loan and each REO Serviced Loan, 0.25% (25 basis points) per annum.
"Specially Serviced Loan": Any Serviced Loan as to which there then
exists a Servicing Transfer Event. Upon the occurrence of a Servicing Transfer
Event with respect to any Serviced Loan, such Serviced Loan shall remain a
Specially Serviced Loan until the earliest of (i) its removal from the Trust
Fund (in the case of a Mortgage Loan), (ii) an REO Acquisition with respect to
the related Mortgaged Property, and (iii) the cessation of all existing
Servicing Transfer Events with respect to such Serviced Loan.
"Startup Day": With respect to each of the Torre Mayor Loan REMIC,
REMIC I and REMIC II, the day designated as such in Section 10.01(c).
"Stated Maturity Date": With respect to any Loan, the Due Date on
which the last payment of principal is due and payable under the terms of the
related Mortgage Note as in effect on the Closing Date, without regard to any
change in or modification of such terms in connection with a bankruptcy or
similar proceeding involving the related Mortgagor or a modification, waiver or
amendment of such Loan granted or agreed to by the Master Servicer or Special
Servicer pursuant to Section 3.20 and, in the case of an ARD Loan, without
regard to its Anticipated Repayment Date.
"Stated Principal Balance": With respect to any Mortgage Loan and
any successor REO Serviced Loan, a principal amount initially equal to the
Cut-off Date Balance of such Mortgage Loan, that is permanently reduced on each
Distribution Date (to not less than zero) by (i) all payments (or P&I Advances
in lieu thereof) of, and all other collections allocated as provided in Section
1.03 to, principal of or with respect to such Mortgage Loan (or successor REO
Serviced Loan) that are (or, if they had not been applied to cover any
Additional Trust Fund Expense, would have been) distributed to
Certificateholders on such Distribution Date, and (ii) the principal portion of
any Realized Loss incurred in respect of such Mortgage Loan (or successor REO
Serviced Loan) during the related Collection Period. With respect to any
Companion Loan (and any successor REO Serviced Loan), a principal amount
initially equal to the Cut-off Date Balance of such Companion Loan, that is
permanently reduced (to not less than zero) by (i) all payments (or P&I Advances
in lieu thereof) of, and all other collections allocated as provided in Section
1.03 to, principal of or with respect to such Companion Loan (or successor REO
Serviced Loan) that are (or, if they had not been applied to cover any
Additional Trust Fund Expense, would have been) distributed to the related
Companion Loan Holder(s), and (ii) the principal portion of any Realized Loss
incurred in respect of such Companion Loan (or successor REO Serviced Loan)
during the related Collection Period. Notwithstanding the foregoing, if a
Liquidation Event occurs in respect of any Loan or REO Property, then the
"Stated Principal Balance" of such Loan or of the related REO Serviced Loan, as
the case may be, shall be zero commencing as of the Distribution Date in the
Collection Period next following the Collection Period in which such Liquidation
Event occurred. In addition, to the extent that principal from general
collections is used to reimburse Nonrecoverable Advances or Work-out Delayed
Reimbursement Amounts, and such amount has reduced the Principal Distribution
Amount, such amount shall not reduce the Stated Principal Balance prior to a
Liquidation Event or other liquidation or disposition of the related Mortgage
Loan or REO Property (other than for purposes of computing the Weighted Average
Adjusted Net Mortgage Rate). With respect to a Serviced Whole Loan, the Stated
Principal Balance shall be the sum of the Stated Principal Balances of the
related Mortgage Loan and the Stated Principal Balances of the related Companion
Loans.
The Stated Principal Balance of a Non-Serviced Mortgage Loan will be
calculated in accordance with the definition of "Stated Principal Balance" in
the related Non-Serviced Mortgage Loan Pooling Agreement.
"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 or Class Q Certificate or a Residual Certificate.
"Subordinate Interest": With respect to any Whole Loan, any related
subordinate note or component.
"Subordinate Interest Holder": With respect to any Whole Loan, the
holder of the related Subordinate Interest.
"Substitution Shortfall Amount": An amount equal to the excess if
any of the difference between the Purchase Price of the Deleted Mortgage Loan
calculated as of the date of substitution and the Stated Principal Balance of
such Qualifying Substitute Mortgage Loan as of the date of substitution.
"Successful Bidder": As defined in Section 7.01(d).
"Tax Matters Person": With respect to each of the Torre Mayor Loan
REMIC, REMIC I and REMIC II, the Person designated as the "tax matters person"
of such REMIC in the manner provided under Treasury Regulations Section
1.860F-4(d) and Treasury Regulations Section 301.6231(a)(7)-1. The "Tax Matters
Person" for each of the Torre Mayor Loan REMIC, REMIC I and REMIC II is the
Holder of Certificates evidencing the largest Percentage Interest in the related
Class of Residual Certificates.
"Tax Returns": The federal income tax returns on IRS Form 1066, U.S.
Real Estate Mortgage Investment Conduit (REMIC) Income Tax Return, including
Schedule Q thereto, Quarterly Notice to Residual Interest Holders of REMIC
Taxable Income or Net Loss Allocation, or any successor forms, to be filed on
behalf of each of the Torre Mayor Loan REMIC, REMIC I and REMIC II due to its
classification as a REMIC under the REMIC Provisions and the tax returns due
with respect to each Grantor Trust, together with any and all other information,
reports or returns that may be required to be furnished to the
Certificateholders or filed with the IRS or any other governmental taxing
authority under any applicable provisions of federal or Applicable State Law.
"Torre Mayor A Notes Intercreditor Agreement": With respect to the
Torre Mayor Pari Passu Note A-1 and the Torre Mayor Pari Passu Note A-2 Mortgage
Loan, that certain intercreditor agreement, dated as of October 13, 2005, by and
among the initial holder of the Torre Mayor Pari Passu Note A-1 and the initial
holder Torre Mayor Pari Passu Note A-2 Mortgage Loan, as from time to time
amended, supplemented or modified.
"Torre Mayor A/B/C Intercreditor Agreement": With respect to the
Torre Mayor Whole Loan, the Intercreditor and Future Funding Agreement dated as
of October 13, 2005 by and among the Torre Mayor Pari Passu Note A-1 Holder, the
holder of the Torre Mayor Pari Passu Note A-2 Mortgage Loan, the Torre Mayor
Note B Holder and the Torre Mayor Note C 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.
"Torre Mayor Control Appraisal Period": The meaning assigned to
"Control Appraisal Period" in the Torre Mayor Intercreditor Agreement.
"Torre Mayor Controlling Holder": The meaning assigned to
"Controlling Holder" in the Torre Mayor Intercreditor Agreement.
"Torre Mayor Intercreditor Agreement": The Torre Mayor A Notes
Intercreditor Agreement or the Torre Mayor A/B/C Intercreditor Agreement, as
applicable.
"Torre Mayor Loan REMIC": A segregated pool of assets subject hereto
and to be administered hereunder, with respect to which a REMIC election is to
be made, consisting of: (i) the Torre Mayor Pari Passu Note A-2 Mortgage Loan,
any related REO Property and all payments under and proceeds of such Mortgage
Loan or REO Property received or receivable after the Cut-off Date (other than
payments of principal, interest and other amounts due and payable on such
Mortgage Loan on or before the Cut-off Date and other than Excess Interest),
together with all documents, Escrow Payments and Reserve Funds delivered or
caused to be delivered hereunder by the related Mortgage Loan Seller with
respect to such Mortgage Loan, (ii) the rights of the Depositor under Sections
2, 3, 4, 6, 11, 12, 13, 14, 15, 16, 17, 18, 19 and 20 of the related Mortgage
Loan Purchase and Sale Agreement with respect to such Mortgage Loan and (iii)
such amounts on or with respect to clause (i) or (ii), including any Mexico
Gross-Up Payments, as from time to time are deposited into the Torre Mayor Loan
REMIC Distribution Account, the Certificate Account, the Interest Reserve
Account and the REO Account (if established) and the Excess Liquidation Proceeds
Account (if established).
"Torre Mayor Loan REMIC Distribution Account": As defined in Section
3.04(c)(iii).
"Torre Mayor Loan REMIC Regular Interest": The regular interest in
the Torre Mayor Loan REMIC, which has a principal balance equal to the Stated
Principal Balance of the Torre Mayor Pari Passu Note A-2 Mortgage Loan and an
interest rate equal to the Adjusted Net Mortgage Rate of the Torre Mayor Pari
Passu Note A-2 Mortgage Loan.
"Torre Mayor Loan REMIC Residual Interest": The sole class of
"residual interests" in the Torre Mayor Loan REMIC for purposes of the REMIC
Provisions and evidenced by the Class R-TM Certificates.
"Torre Mayor Master Servicer": The master servicer under the Torre
Mayor Pooling Agreement, which as of the Closing Date is Bank of America,
National Association.
"Torre Mayor Mortgaged Property": The property that secures the
Torre Mayor Whole Loan.
"Torre Mayor Nonrecoverable Servicing Advance": With respect to the
Torre Mayor Pari Passu Note A-2 Mortgage Loan, a "Nonrecoverable Servicing
Advance" as defined in the Torre Mayor Pooling Agreement.
"Torre Mayor Note B": A Mortgage Note related to the Torre Mayor
Whole Loan that is not included in the Trust Fund, which is subordinated in
right of payment to the Torre Mayor Pari Passu Note A-1 and the Torre Mayor Pari
Passu Note A-2 to the extent set forth in the Torre Mayor Intercreditor
Agreement.
"Torre Mayor Note B Holder": The holder of the Torre Mayor Note B.
"Torre Mayor Note C": A Mortgage Note related to the Torre Mayor
Whole Loan that is not included in the Trust Fund, which is subordinated in
right of payment to the Torre Mayor Pari Passu Note A-1, the Torre Mayor Pari
Passu Note A-2 and the Torre Mayor Note B to the extent set forth in the Torre
Mayor Intercreditor Agreement.
"Torre Mayor Note C Holder": The holder of the Torre Mayor Note C.
"Torre Mayor Noteholders": The holder of the Mortgage Note for the
Torre Mayor Pari Passu Note A-2 Mortgage Loan, the Torre Mayor Pari Passu Note
A-1 Holder, the Torre Mayor Note B Holder and the Torre Mayor Note C Holder.
"Torre Mayor Pari Passu Note A-1 Companion Loan Securities": For so
long as the Torre Mayor Pari Passu Note A-2 or a successor REO Serviced Loan
with respect to the Torre Mayor Pari Passu Note A-2 is part of the Mortgage
Pool, any class of securities backed by the Torre Mayor Pari Passu Note A-1.
"Torre Mayor Pari Passu Note A-1 Controlling Class": As of any date
of determination, the outstanding class of Torre Mayor Pari Passu Note A-1
Companion Loan Securities with the lowest payment priority that has a then
outstanding certificate balance (net of any appraisal reduction amounts
allocable to such class pursuant to the Torre Mayor Pooling Agreement) at least
equal to 25% of its initial certificate balance.
"Torre Mayor Pari Passu Note A-2 Mortgage Loan": The Mortgage Loan
identified as Loan No. 20051519 in the Mortgage Loan Schedule, which, together
with the Torre Mayor Pari Passu Note A-1, the Torre Mayor Note B and the Torre
Mayor Note C, is secured by a Mortgage on the Torre Mayor Mortgaged Property.
"Torre Mayor Pari Passu Note A-1": A Mortgage Note related to the
Torre Mayor Whole Loan that is not included in the Trust Fund, which is pari
passu in right of payment to the Torre Mayor Pari Passu Note A-2 to the extent
set forth in the Torre Mayor A Notes Intercreditor Agreement.
"Torre Mayor Pari Passu Note A-2": With respect to the Torre Mayor
Pari Passu Note A-2 Mortgage Loan, the related Mortgage Note that is included in
the Trust Fund.
"Torre Mayor Pari Passu Note A-2 Holder": The holder of the Torre
Mayor Pari Passu Note A-2.
"Torre Mayor Pooling Agreement": That certain pooling and servicing
agreement dated as of October 1, 2005 among Banc of America Commercial Mortgage
Inc., as depositor, the Torre Mayor Master Servicer, as master servicer, the
Torre Mayor Special Servicer, as special servicer, and the Torre Mayor Trustee,
as trustee and REMIC administrator.
"Torre Mayor Special Servicer": The special servicer under the Torre
Mayor Pooling Agreement, which of as of the Closing Date is Midland Loan
Services, Inc.
"Torre Mayor Trustee": The trustee under the Torre Mayor Pooling
Agreement, which of as of the Closing Date is LaSalle Bank National Association.
"Torre Mayor Whole Loan": The Torre Mayor Pari Passu Note A-2
Mortgage Loan together with the Torre Mayor Pari Passu Note A-1, the Torre Mayor
Note B and the Torre Mayor Note C. References herein to the Torre Mayor Whole
Loan shall be construed to refer to the aggregate indebtedness under the Torre
Mayor Pari Passu Note A-1, the Torre Mayor Pari Passu Note A-2, the Torre Mayor
Note B and the Torre Mayor Note C.
"Transfer": Any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transfer Affidavit and Agreement": As defined in Section
5.02(d)(i)(B).
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer any Ownership
Interest in a Certificate.
"Trust": The common law trust created hereby.
"Trust Fund": Collectively, all of the assets of the Torre Mayor
Loan REMIC, REMIC I, REMIC II, the Grantor Trusts, the Loss of Value Reserve
Fund and the portion of the Excess Liquidation Proceeds Account beneficially
owned by the Holders of the Class R-TM Certificates as described in Section
3.04(c)(iv).
"Trustee": Xxxxx Fargo Bank, N.A., in its capacity as Trustee
hereunder, its successor in interest, or any successor trustee appointed as
herein provided.
"Trustee Fee": The fee payable to the Trustee on each Distribution
Date for its services as Trustee hereunder, in an aggregate amount equal to one
month's interest at the Trustee Fee Rate in respect of each Mortgage Loan and
related REO Serviced Loan, calculated on the Stated Principal Balance as of the
Due Date in the immediately preceding Collection Period and for the same number
of days (i.e., on the basis of, as applicable, a 360-day year consisting of
twelve 30-day months or the actual number of days elapsed during each calendar
month in a 360-day year) respecting which any related interest payment due on
such Serviced Loan or deemed to be due on such related REO Serviced Loan is
computed under the terms of the related Mortgage Note (as such terms may be
changed or modified at any time following the Closing Date) and applicable law,
and without giving effect to any Excess Interest that may accrue on any ARD Loan
after its Anticipated Repayment Date.
"Trustee Fee Rate": A rate of 0.0011% 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 the Torre Mayor
Loan REMIC Regular Interest, for any Distribution Date, one month's interest at
the interest rate applicable to the Torre Mayor Loan REMIC Regular Interest for
such Distribution Date, accrued on the Uncertificated Principal Balance thereof
outstanding immediately prior to such Distribution Date. With respect to any
REMIC I Regular Interest, for any Distribution Date, one month's interest at the
REMIC I Remittance Rate applicable to such REMIC I Regular Interest for such
Distribution Date, accrued on the REMIC I Principal Balance of such REMIC I
Regular Interest outstanding immediately prior to such Distribution Date. The
Uncertificated Accrued Interest in respect of the Torre Mayor Loan REMIC Regular
Interest or any REMIC I Regular Interest for any Distribution Date shall be
deemed to have accrued during the applicable Interest Accrual Period.
"Uncertificated Distributable Interest": With respect to the Torre
Mayor Loan REMIC Regular Interest for any Distribution Date, the Uncertificated
Accrued Interest in respect thereof for such Distribution Date, reduced (to not
less than zero) by the amount of Prepayment Interest Shortfalls, if any, for
such Distribution Date, that relate to the Torre Mayor Pari Passu Note A-2
Mortgage Loan. 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.
"Uncertificated Principal Balance": With respect to the Torre Mayor
Loan REMIC Regular Interest, (i) on or prior to the first Distribution Date, an
amount equal to the initial principal amount of the Torre Mayor Loan REMIC
Regular Interest as specified in the Preliminary Statement hereto, and (ii) as
of any date of determination after the first Distribution Date, an amount equal
to the Torre Mayor Pari Passu Note A-2 Mortgage Loan Stated Principal Balance on
the Distribution Date immediately prior to such date of determination.
"Underwriter": Each of Banc of America Securities LLC, Barclays
Capital Inc., SunTrust Capital Markets Inc., Credit Suisse Securities (USA) LLC
and Xxxxxxx, Xxxxx & Co.
"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, Class
R-II or Class R-TM Certificates will be entitled to any Voting Rights. Voting
Rights allocated to a Class of Certificateholders shall be allocated among such
Certificateholders in proportion to the Percentage Interests evidenced by their
respective Certificates.
"Weighted Average Adjusted Net Mortgage Rate": With respect to any
Distribution Date, the weighted average of the respective Adjusted Net Mortgage
Rates for all the Mortgage Loans and related REO Serviced Loans, weighted on the
basis of the respective Stated Principal Balances of such Mortgage Loans and REO
Serviced Loans outstanding immediately prior to such Distribution Date.
"Whole Loan Purchase Option Holder": With respect to any Whole Loan,
the holder of the related purchase option, if any, under the related
Intercreditor Agreement.
"Whole Loans": The KinderCare Portfolio Whole Loan, the Desert
Passage Whole Loan and the Torre Mayor Whole Loan.
"Willowind Apartments Mezzanine Intercreditor Agreement": That
certain Intercreditor Agreement, dated as of January 31, 2006, by and between
Barclays Capital Real Estate Inc. as "Senior Lender" and the Willowind
Apartments Mezzanine Loan Holder as "Mezzanine Lender".
"Willowind Apartments Mezzanine Loan": That certain mezzanine loan
related to the Willowind Apartments Mortgage Loan, which is evidenced by that
certain Mezzanine Loan Agreement, dated as of January 31, 2006, by and between
Xxxxxx Xxxx and the Willowind Apartments Mezzanine Loan Holder.
"Willowind Apartments Mezzanine Loan Holder": WW Associates, LLC,
and its permitted successors or assigns.
"Willowind Apartments Mortgage Loan": That certain Mortgage Loan
identified as Loan No. 20051347 on the Mortgage Loan Schedule.
"Withheld Amounts": As defined in Section 4.05.
"Within Grace Period Loan": With respect to any Master Servicer
Remittance Date, any Serviced Loan having any Monthly Payment remaining unpaid
past its Due Date, as of the close of business on the Determination Date in the
same calendar month, but that is not delinquent past the applicable grace period
for such Monthly Payment as of the close of business on such Determination Date.
"Workout-Delayed Reimbursement Amount": With respect to any Serviced
Loan, the amount of any Advance made with respect to such Serviced Loan on or
before the date such Serviced Loan becomes (or, but for the making of three
monthly payments under its modified terms, would then constitute) a Corrected
Serviced Loan, together with (to the extent accrued and unpaid) interest on such
Advances, to the extent that (i) such Advance is not reimbursed to the Person
who made such Advance on or before the date, if any, on which such Serviced Loan
becomes a Corrected Serviced Loan and (ii) the amount of such Advance becomes an
obligation of the Mortgagor to pay such amount under the terms of the modified
loan documents. That any amount constitutes all or a portion of any
Workout-Delayed Reimbursement Amount shall not in any manner limit the right of
any Person hereunder to determine that such amount instead constitutes a
Nonrecoverable Advance reimbursable in the same manner as any other
Nonrecoverable Advance.
"Workout Fee": With respect to each Corrected Serviced Loan, the fee
designated as such and payable to the Special Servicer pursuant to the second
paragraph of Section 3.11(c).
"Workout Fee Rate": With respect to each Corrected Serviced Loan as
to which a Workout Fee is payable, 1.0% (100 basis points).
Section 1.02 Rules of Construction; Other Definitional Provisions.
Unless the context otherwise clearly requires:
(a) the definitions of terms herein shall apply equally to the singular
and plural forms of the terms defined;
(b) whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms;
(c) the words "include", "includes" and "including" shall be deemed to
be followed by the phrase "without limitation";
(d) the word "will" shall be construed to have the same meaning and
effect as the word "shall";
(e) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement,
instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on
such amendments, supplements or modifications set forth herein);
(f) any reference to any Person, or to any Person in a specified
capacity, shall be construed to include such Person's successors and
assigns or such Person's successors in such capacity, as the case
may be;
(g) unless otherwise specified herein, "pro rata" when used in reference
to more than one Class of the Certificates shall mean "pro rata"
based on the outstanding Class Principal Balances of such Classes of
Certificates;
(h) all references in this instrument to designated "Articles",
"Sections", "Subsections", "clauses" and other subdivisions are to
the designated Articles, Sections, Subsections, clauses and other
subdivisions of this Agreement as originally executed; and
(i) the words "herein", "hereof", "hereunder" and other words of similar
import refer to this Agreement as a whole and not to any particular
Article, Section, Subsection or other subdivision.
Section 1.03 Certain Calculations in Respect of the Mortgage Pool.
(a) All amounts collected by or on behalf of the Trust in respect of
any Cross-Collateralized Group in the form of payments from Mortgagors,
Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds shall be
applied among the Mortgage Loans constituting such Cross-Collateralized Group in
accordance with the express provisions of the related loan documents and, in the
absence of such express provisions, in accordance with the Servicing Standard.
All amounts collected by or on behalf of the Trust in respect of or allocable to
any particular Mortgage Loan in the form of payments from Mortgagors, Insurance
Proceeds, Condemnation Proceeds or Liquidation Proceeds shall be applied to
amounts due and owing under the related Mortgage Note and Mortgage (including
for principal and accrued and unpaid interest) in accordance with the express
provisions of the related loan documents and, in the absence of such express
provisions or if and to the extent that such terms authorize the lender to use
its discretion, shall be applied: first, as a recovery of Nonrecoverable
Advances (including interest on such Nonrecoverable Advances) and
Workout-Delayed Reimbursement Amounts that were reimbursed from general
collections on the Mortgage Loans and resulted in principal distributed to the
Certificateholders being reduced as a result of the first proviso in the
definition of "Principal Distribution Amount", and, if applicable, unpaid
related Liquidation Expenses and any outstanding related Additional Trust Fund
Expenses; second, as a recovery of accrued and unpaid interest (excluding, in
the case of an ARD Loan after its Anticipated Repayment Date, Excess Interest)
on such Mortgage Loan to, but not including, the date of receipt by or on behalf
of the Trust (or, in the case of a full Monthly Payment from any Mortgagor,
through the related Due Date); third, as a recovery of principal of such
Mortgage Loan then due and owing, including by reason of acceleration of the
Mortgage Loan following a default thereunder (or, if a Liquidation Event has
occurred in respect of such Mortgage Loan, as a recovery of principal to the
extent of its entire remaining unpaid principal balance); fourth, unless a
Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery
of amounts to be currently applied to the payment of, or escrowed for the future
payment of, real estate taxes, assessments, insurance premiums, ground rents (if
applicable) and similar items; fifth, unless a Liquidation Event has occurred in
respect of such Mortgage Loan, as a recovery of Reserve Funds to the extent then
required to be held in escrow; sixth, as a recovery of any Prepayment Premium
then due and owing under such Mortgage Loan; seventh, as a recovery of any
Default Charges then due and owing under such Mortgage Loan; eighth, as a
recovery of any assumption fees and modification fees then due and owing under
such Mortgage Loan; ninth, as a recovery of any other amounts then due and owing
under such Mortgage Loan other than remaining unpaid principal; tenth, as a
recovery of any remaining principal of such Mortgage Loan to the extent of its
entire remaining unpaid principal balance; and, eleventh, in the case of an ARD
Loan after its Anticipated Repayment Date, as a recovery of accrued and unpaid
Excess Interest on such ARD Loan, to but not including the date of receipt.
(b) Collections by or on behalf of the Trust in respect of each REO
Property, exclusive of amounts to be applied to the payment of the costs of
operating, managing, maintaining and disposing of such REO Property, shall be
treated: first, as a recovery of Nonrecoverable Advances (including interest on
such Nonrecoverable Advance) and Workout-Delayed Reimbursed Amounts with respect
to such REO Serviced Loan, that were reimbursed from collections on the Mortgage
Loans and resulted in principal distributed to the Certificateholders being
reduced as a result of the first proviso of the definition of "Principal
Distribution Amount"; second, as a recovery of accrued and unpaid interest
(excluding, in the case of an REO Serviced Loan that relates to an ARD Loan
after its Anticipated Repayment Date, Excess Interest) on such REO Serviced Loan
at the related Mortgage Rate in effect from time to time to but not including
the Due Date in the Collection Period of receipt; third, as a recovery of
principal of such REO Serviced Loan to the extent of its entire unpaid principal
balance; fourth, in accordance with the Servicing Standard of the Master
Servicer or the Special Servicer, as applicable, as a recovery of any other
amounts due and owing in respect of such REO Serviced Loan; fifth, as a recovery
of any other amounts deemed to be due and owing in respect of the related REO
Serviced Loan (other than, in the case of an REO Serviced Loan that relates to
an ARD Loan after its Anticipated Repayment Date, accrued and unpaid Excess
Interest); and sixth, in the case of an REO Serviced Loan that relates to an ARD
Loan after its Anticipated Repayment Date, as a recovery of any accrued and
unpaid Excess Interest on such REO Serviced Loan to but not including the date
of receipt by or on behalf of the Trust, in that order. If the KinderCare
Portfolio Pari Passu Note A-2 Mortgage Loan or Torre Mayor Pari Passu Note A-2
Mortgage Loan becomes an "REO Serviced Loan" as defined under the KinderCare
Portfolio Pooling Agreement or the Torre Mayor Pooling Agreement, as applicable,
the treatment of the foregoing amounts with respect to such Mortgage Loan shall
be subject to the terms of the related Intercreditor Agreement and the related
Non-Serviced Mortgage Loan Pooling Agreement.
(c) For the purposes of calculating distributions pursuant to this
Agreement, Excess Interest on an ARD Loan shall be deemed not to constitute
principal or any portion thereof and shall not be added to the unpaid principal
balance or Stated Principal Balance of such ARD Loan. To the extent any Excess
Interest is not paid on a current basis, it shall be deemed to be deferred
interest. Any reference to the Certificate Principal Balance of any Class of
Certificates on or as of a Distribution Date shall refer to the Certificate
Balance of such Class of Certificates on such Distribution Date after giving
effect to any distributions made on such Distribution Date pursuant to Section
4.01(a).
(d) Insofar as amounts received in respect of any Mortgage Loan or
related REO Property and allocable to shared fees and shared charges owing in
respect of such Mortgage Loan or the related REO Serviced Loan, as the case may
be, that constitute Additional Master Servicing Compensation payable to the
Master Servicer and/or Additional Special Servicing Compensation payable to the
Special Servicer, are insufficient to cover the full amount of such fees and
charges, such amounts shall be allocated between such of those fees and charges
as are payable to the Master Servicer, on the one hand, and such of those fees
and charges as are payable to the Special Servicer, on the other, pro rata in
accordance with their respective entitlements.
(e) Notwithstanding anything contained herein to the contrary, with
respect to each Mortgage Loan subject to an involuntary prepayment of principal
during a Collection Period, all interest collected during such Collection Period
in connection with such involuntary prepayment of principal that the related
lender would be entitled to retain under the related loan documents shall be
treated as excess interest and shall be used to offset any shortfalls of
interest for the related Distribution Date resulting from involuntary
prepayments of principal during such Collection Period prior to such shortfalls
of interest being allocated to any Class of Certificates. Any such interest not
required to offset shortfalls of interest for the related Distribution Date
pursuant to the immediately preceding sentence shall constitute Additional
Master Servicing Compensation.
(f) The foregoing applications of amounts received in respect of any
Mortgage Loan or REO Property shall be determined by the Master Servicer and
reflected in the appropriate monthly report from the Master Servicer and in the
appropriate monthly Trustee Report as provided in Section 4.02.
If an expense under this Agreement relates in the reasonable
judgment of the Master Servicer, the Special Servicer or the Trustee, as
applicable, primarily to the administration of the Trust Fund, any REMIC formed
hereunder or to any determination respecting the amount, payment or avoidance of
any tax under the REMIC Provisions or the actual payment of any REMIC tax or
expense, or this Agreement states that any expense is solely "an expense of the
Trust Fund" or words of similar import, then such expense shall not be allocated
to, deducted or reimbursed from, or otherwise charged against 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 groups of Mortgage Loans identified on the Mortgage Loan
Schedule as being cross-collateralized with each other are, in the case of each
such particular group of Mortgage Loans, by their terms, cross-defaulted and
cross-collateralized with each other. For purposes of reference only in this
Agreement, and without in any way limiting the servicing rights and powers of
the Master Servicer and/or the Special Servicer, with respect to any
Cross-Collateralized Mortgage Loan (or successor REO Serviced Loan), the
Mortgaged Property (or REO Property) that relates or corresponds thereto shall
be the property identified in the Mortgage Loan Schedule as corresponding
thereto. The provisions of this Agreement shall be interpreted in a manner
consistent with this Section 1.04; provided that, if there exists with respect
to any Cross-Collateralized Group only one original of any document referred to
in the definition of "Mortgage File" covering all the Mortgage Loans in such
Cross-Collateralized Group, then the inclusion of the original of such document
in the Mortgage File for any of the Mortgage Loans constituting such
Cross-Collateralized Group shall be deemed an inclusion of such original in the
Mortgage File for each such Mortgage Loan.
Section 1.05 Incorporation of Preliminary Statement.
The parties hereto acknowledge that the Preliminary Statement at the
beginning of this Agreement constitutes a part of this Agreement.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND
WARRANTIES; ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans.
(a) It is the intention of the parties hereto that a common law
trust be established pursuant to this Agreement and further such trust be
designated as "Banc of America Commercial Mortgage Inc. Commercial Mortgage
Pass-Through Certificates, Series 2006-1". Xxxxx Fargo Bank, N.A. is hereby
appointed, and does hereby agree to act, as Trustee hereunder and, in such
capacity, to hold the Trust Fund in trust for the exclusive use and benefit of
all present and future Certificateholders. It is not intended that this
Agreement create a partnership or a joint-stock association.
(b) The Depositor, concurrently with the execution and delivery
hereof, does hereby transfer, assign, sell, set over and otherwise convey to the
Trustee, in trust, without recourse, for the benefit of the Certificateholders
(and for the benefit of the other parties to this Agreement as their respective
interests may appear) and the Serviced Companion Loan Holders all the right,
title and interest of the Depositor in, to and under (i) the Mortgage Loans and
all documents included in the related Mortgage Files and Servicing Files, (ii)
the Mortgage Loan Purchase and Sale Agreements and (iii) all other assets
included or to be included in the Trust Fund. Such assignment includes (i) the
Mortgage Loans that from time to time are subject to this Agreement, all
interest accrued on the Mortgage Loans on and after the Cut-off Date and all
principal payments received on the Mortgage Loans after the Cut-off Date (other
than principal and interest payments due and payable on the Mortgage Loans on or
before the Cut-off Date, which shall belong and be promptly remitted to the
applicable Mortgage Loan Seller), together with all documents delivered or
caused to be delivered hereunder with respect to such Mortgage Loans by the
related Mortgage Loan Seller; (ii) any REO Property acquired in respect of a
Mortgage Loan; (iii) such funds or assets that from time to time are deposited
into the Certificate Account, the Torre Mayor Loan REMIC Distribution Account,
the REMIC I Distribution Account, the REMIC II Distribution Account, the
Interest Reserve Account, the Excess Interest Distribution Account, the Excess
Liquidation Proceeds Account and the REO Account (if established), (iv) in the
case of a Mortgage Loan included in a Serviced Whole Loan, all the right, title
and interest of the Depositor in the related Intercreditor Agreement, (v) in the
case of the KinderCare Portfolio Pari Passu Note A-2 Mortgage Loan and the Torre
Mayor Pari Passu Note A-2 Mortgage Loan, all the right, title and interest of
the Depositor in, to and under the related Intercreditor Agreements, and (vi) in
the case of the KinderCare Portfolio Pari Passu Note A-2 Mortgage Loan, the
allonge thereto. The conveyance of the KinderCare Portfolio Pari Passu Note A-2
Mortgage Loan and the Torre Mayor Pari Passu Note A-2 Mortgage Loan and the
right to service the KinderCare Portfolio Pari Passu Note A-2 Mortgage Loan and
the Torre Mayor Pari Passu Note A-2 Mortgage Loan are subject to the terms and
conditions of the related Non-Serviced Mortgage Loan Pooling Agreement and the
related Intercreditor Agreement. This conveyance is subject to the rights of the
Sub-Servicers pursuant to the Sub-Servicing Agreements, which rights are subject
in any event to this Agreement.
Under United States generally accepted accounting principles, the
Depositor shall report: (i) its acquisition of the Mortgage Loans from the
Mortgage Loan Sellers, pursuant to the Mortgage Loan Purchase and Sale
Agreements, as a purchase of such Mortgage Loans from the Mortgage Loan Sellers;
and (ii) its transfer of the Mortgage Loans to the Trustee, pursuant to this
Section 2.01(b), as a sale of such Mortgage Loans to the Trustee. In connection
with the foregoing, the Depositor shall cause all of its records to reflect such
acquisitions as purchases and such transfer as a sale (in each case, as opposed
to a secured loan).
After the Depositor's transfer of the Mortgage Loans to the Trustee
pursuant to this Section 2.01(b), the Depositor shall not take any action
inconsistent with the Trust's ownership of the Mortgage Loans.
In connection with the Depositor's assignment pursuant to this
Section 2.01(b) above, the Depositor hereby represents and warrants that it has
contractually obligated the Mortgage Loan Sellers, at the Mortgage Loan Sellers'
expense, pursuant to the Mortgage Loan Purchase and Sale Agreements, to deliver
to and deposit with, or cause to be delivered to and deposited with, the Trustee
or a Custodian appointed thereby, on or before the Closing Date, the Mortgage
File and any Additional Collateral (other than Reserve Funds) for each Mortgage
Loan acquired by the Depositor from the Mortgage Loan Sellers; provided,
however, with respect to any Non-Serviced Mortgage Loan, only the original
Mortgage Note (and any related allonge) evidencing such Non-Serviced Mortgage
Loan and copies of any related Intercreditor Agreement shall be delivered to the
Trustee or a Custodian appointed thereby. 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 March 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 Torre Mayor Loan REMIC Distribution Account, the
REMIC I Distribution Account, the REMIC II Distribution Account, the Interest
Reserve Account, the Excess Interest Distribution Account, the Excess
Liquidation Proceeds Account, or the REO Account, and all reinvestment earnings
on such amounts, and all of the Depositor's right, title and interest under the
Mortgage Loan Purchase and Sale Agreements, (iii) the possession by the Trustee
or its agent of the Mortgage Notes with respect to the Mortgage Loans subject
hereto from time to time and such other items of property that constitute
instruments, money, negotiable documents or chattel paper shall be deemed to be
"possession by the secured party" or possession by a purchaser or person
designated by such secured party for the purpose of perfecting such security
interest under applicable law, and (iv) notifications to, and acknowledgments,
receipts or confirmations from, Persons holding such property shall be deemed to
be notifications to, or acknowledgments, receipts or confirmations from,
financial intermediaries, bailees or agents (as applicable) of the Trustee for
the purpose of perfecting such security interest under applicable law.
(c) As soon as reasonably possible, and in any event within 90 days
after the later of (i) the Closing Date (or, in the case of a Replacement
Mortgage Loan substituted as contemplated by Section 2.03, after the related
date of substitution) and (ii) the date on which all recording information
necessary to complete the subject document is received by the Trustee, the
Trustee shall complete (to the extent necessary), and shall submit for recording
or filing, as the case may be, in the appropriate office for real property
records or UCC Financing Statements, as applicable, 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(s) (if a Serviced Whole Loan is involved and the
Trustee has knowledge of such Noteholder(s)), and the Directing
Certificateholder. Such Mortgage Loan Seller shall be responsible for paying the
reasonable fees and out-of-pocket expenses of the Trustee in connection with the
above-referenced recording and filing of documents insofar as it relates to the
Mortgage Loans transferred by such Mortgage Loan Seller and acquired by the
Depositor from such Mortgage Loan Seller, all as more particularly provided for
in the related Mortgage Loan Purchase and Sale Agreement.
(d) In connection with the Depositor's assignment pursuant to
Section 2.01(b) above, the Depositor hereby represents and warrants that it has
contractually obligated each Mortgage Loan Seller, at such Mortgage Loan
Seller's expense, pursuant to the related Mortgage Loan Purchase and Sale
Agreement, to deliver to and deposit with, or cause to be delivered to and
deposited with, the Master Servicer or its designee, on or before the Closing
Date, the following items: (i) 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, the Trustee shall re-assign any rights that such Mortgage
Loan Seller had with respect to representations and warranties made by a third
party originator to such Mortgage Loan Seller under the related Mortgage Loan
Purchase and Sale Agreement to such Mortgage Loan Seller in respect of any such
Mortgage Loan.
Section 2.02 Acceptance of the Torre Mayor Loan REMIC and REMIC I by
Trustee.
(a) The Trustee, by the execution and delivery of this Agreement,
acknowledges receipt by it or a Custodian on its behalf of, subject to the
provisions of Section 2.01 and to the further review provided for in this
Section 2.02, and further subject to the Schedule of Exceptions attached hereto
as Schedule III, with respect to each Mortgage Loan, an original Mortgage Note
endorsed to the Trustee and declares that it or a Custodian on its behalf holds
and will hold the documents delivered or caused to be delivered by the Mortgage
Loan Sellers in respect of the Mortgage Loans, and that it holds and will hold
all other assets included in the Torre Mayor Loan REMIC and REMIC I in trust for
the exclusive use and benefit of all present and future Certificateholders
(other than the Class V Certificateholders) and the Trustee as holder of the
Torre Mayor Loan REMIC Regular Interest, the Class A-SBFL Regular Interest and
the REMIC I Regular Interests. To the extent that the Mortgage File for a
Mortgage Loan included in a Serviced Whole Loan relates to a Companion Loan, the
Trustee shall also hold such Mortgage File for the use and benefit of the
related Companion Loan Holder(s).
(b) On or about the 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(s) (if a
Serviced Whole Loan is involved and the Trustee has knowledge of such
Holder(s)), and the Directing Certificateholder, that, as to each Mortgage Loan
then subject to this Agreement (except as specifically identified in any
exception report annexed to such certification): (i) the original Mortgage Note
specified in clause (i) of the definition of "Mortgage File" and all allonges
thereto, if any (or a copy of such Mortgage Note, together with a lost note
affidavit certifying that the original of such Mortgage Note has been lost), the
original or copy of documents specified in clauses (ii) through (vii) and (xii)
of the definition of "Mortgage File" (without regard to the parenthetical), have
been received by it or a Custodian on its behalf; (ii) if such report is due
more than 180 days after the Closing Date, the recordation/filing contemplated
by Section 2.01(c) has been completed (based solely on receipt by the Trustee of
the particular recorded/filed documents); (iii) all documents received by it or
any Custodian with respect to such Mortgage Loan have been reviewed by it or by
such Custodian on its behalf and (A) appear regular on their face (handwritten
additions, changes or corrections shall not constitute irregularities if
initialed by the Mortgagor), (B) appear to have been executed and (C) purport to
relate to such Mortgage Loan; and (iv) the Trustee on behalf of the Trust is
shown as the owner of each Mortgage recorded in the name of MERS or its
designee. The Trustee may assume that, for purposes of reviewing the items in
clause (viii) of the definition of Mortgage File and completing the
certification attached hereto as Exhibit F, the related UCC-1 includes one state
level UCC Financing Statement filing in the state of incorporation of the
related Borrower for each Mortgaged Property (or with respect to any Mortgage
Loan that has two or more related Borrowers, the state of incorporation of each
such Borrower). If any exceptions are noted or if the recordation/filing
contemplated by Section 2.01(c) has not been completed (based solely on receipt
by the Trustee of the particular documents showing evidence of the
recordation/filing), the Trustee shall every 90 days after the ninetieth day
following the Closing Date until the earliest of (i) the date on which such
exceptions are eliminated and such recordation/filing has been completed, (ii)
the date on which all the affected Mortgage Loans are removed from the Trust
Fund, and (iii) the second anniversary of the Closing Date), distribute an
updated exception report to the recipients of the above mentioned certification
that was submitted to such recipients substantially in the form of Exhibit F. At
any time subsequent to the second anniversary of the Closing Date, the Trustee
shall, upon request and at the requesting party's expense, prepare and deliver
to the requesting party (including any Certificateholder or Certificate Owner)
an updated version of the exception report provided for in the prior sentence.
(c) If a Mortgage Loan Seller substitutes a Replacement Mortgage
Loan for any Defective Mortgage Loan as contemplated by Section 2.03, the
Trustee or a Custodian on its behalf shall review the documents delivered to it
or such Custodian with respect to such Replacement Mortgage Loan, and the
Trustee shall deliver a certification comparable to that described in the prior
paragraph, in respect of such Replacement Mortgage Loan, on or about the
thirtieth day following the related date of substitution (and, if any exceptions
are noted, every 90 days thereafter until the earliest of (i) the date on which
such exceptions are eliminated and all related recording/filing has been
completed, (ii) the date on which such Replacement Mortgage Loan is removed from
the Trust Fund and (iii) the second anniversary of the date on which such
Replacement Mortgage Loan was added to the Trust Fund). At any time subsequent
to the second anniversary of the date on which such Replacement Mortgage Loan is
added to the Trust Fund, the Trustee shall, upon request, prepare and deliver to
the requesting party (including any Certificateholder or Certificate Owner) an
updated version of the exception report provided for in the prior sentence.
(d) None of the Trustee, the Master Servicer, the Special Servicer
or any Custodian is under any duty or obligation (i) to determine whether any of
the documents specified in clauses (iii), (v), (vi) and (viii) through (xii) of
the definition of "Mortgage File" exist or are required to be delivered by the
Mortgage Loan Sellers in respect of any Mortgage Loan, or (ii) to inspect,
review or examine any of the documents, instruments, certificates or other
papers relating to the Mortgage Loans delivered to it to determine that the same
are valid, legal, effective, genuine, binding, enforceable, sufficient or
appropriate for the represented purpose or that they are other than what they
purport to be on their face. Notwithstanding the foregoing, with respect to
Letters of Credit referenced in clause (xii) of the definition of "Mortgage
File" the Trustee shall perform the review set forth in Section
2.02(b)(iii)(A)-(C). Furthermore, except as expressly provided in Section
2.02(b), none of the Trustee, the Master Servicer, the Special Servicer or any
Custodian shall have any responsibility for determining whether the text of any
assignment or endorsement is in proper or recordable form, whether the requisite
recording of any document is in accordance with the requirements of any
applicable jurisdiction, or whether a blanket assignment is permitted in any
applicable jurisdiction.
(e) In performing the reviews contemplated by subsections (b) and
(c) above, the Trustee may conclusively rely on the Mortgage Loan Sellers as to
the purported genuineness of any such document and any signature thereon. It is
understood that the scope of the Trustee's review of the Mortgage Files is
limited solely to confirming that the documents specified in clauses (i) through
(v) and clause (vii) of the definition of "Mortgage File", have been received
and such additional information as will be necessary for delivering the
certifications required by subsections (a) and (b) above. If 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(s) (if a Serviced Whole Loan is involved and the Trustee has knowledge of
such Holder(s)), 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, and the related Companion Loan Holder(s) (if a Serviced Whole
Loan is involved and the Trustee has knowledge of such Holder(s)), then such
Mortgage Loan Seller shall have an additional period equal to the applicable
Resolution Extension Period to complete such correction or cure or, failing
such, to repurchase the affected Mortgage Loan; provided, further, that, in lieu
of effecting any such repurchase (but, in any event, no later than such
repurchase would have to have been completed), such Mortgage Loan Seller shall
be permitted, during the three-month period following the Startup Day for REMIC
I (or during the two-year period following such Startup Day if the affected
Mortgage Loan is a "defective obligation" within the meaning of Section
860G(a)(4)(B)(ii) of the Code and Treasury Regulations Section 1.860G-2(f)), to
replace the affected Mortgage Loan, other than a Non-Serviced 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 Group are the subject of a Breach or Document Defect, then,
for purposes of (i) determining whether such Breach or Document Defect is a
Material Breach or Material Document Defect, as the case may be, and (ii) the
application of remedies, such Cross-Collateralized Group shall be treated as a
single Mortgage Loan.
If (x) any Mortgage Loan is required to be repurchased or
substituted as contemplated in this Section 2.03, (y) such Mortgage Loan is a
Crossed-Collateralized Mortgage Loan or is secured by a portfolio of Mortgaged
Properties and the related loan documents provide that a Mortgaged Property may
be uncrossed from the other Mortgaged Properties in that portfolio, and (z) the
applicable Material Breach or Material Document Defect does not constitute a
Material Breach or Material Document Defect, as the case may be, as to any
related Crossed-Collateralized Mortgage Loan or applies to only specific
Mortgaged Properties included in such portfolio (without regard to this
paragraph), then the applicable Material Breach or Material Document Defect (as
the case may be) will be deemed to constitute a Material Breach or Material
Document Defect (as the case may be) as to any related Crossed-Collateralized
Mortgage Loan and to each other Mortgaged Property included in such portfolio
and the related Mortgage Loan Seller shall repurchase or substitute for any
related Crossed-Collateralized Mortgage Loan in the manner described above
unless, in the case of a Material Breach or Material Document Defect, both of
the following conditions would be satisfied if such Mortgage Loan Seller were to
repurchase or substitute for only the affected Crossed-Collateralized Mortgage
Loans or affected Mortgaged Properties as to which a Material Breach or Material
Document Defect had occurred without regard to this paragraph: (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 any of REMIC I, REMIC II or the
Torre Mayor Loan REMIC 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 affected Mortgage Loan will be
required to be repurchased as contemplated hereby. Monthly Payments due with
respect to each Replacement Mortgage Loan (if any) after the related date of
substitution, and Monthly Payments due with respect to each corresponding
Deleted Mortgage Loan (if any) after the related Due Date in March 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 Serviced Loans where the related Mortgage Loan Seller is not an
Affiliate of the Master Servicer) and the Special Servicer (with respect to
Specially Serviced Loans and with respect to Performing Serviced Loans where the
related 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
Serviced 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 the Companion Loan Holder(s), 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 the Companion
Loan Holder(s), as of the Closing Date, that:
(i) The Master Servicer is duly organized, validly existing and in
good standing as a national banking association under the laws of the
United States of America, and the Master Servicer is in compliance with
the laws of each jurisdiction in which any Mortgaged Property is located
to the extent necessary to perform its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Master
Servicer, and the performance and compliance with the terms of this
Agreement by the Master Servicer, do not violate the Master Servicer's
organizational documents or constitute a default (or an event that, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material agreement or other instrument to
which it is a party or that is applicable to it or any of its assets,
which default or breach, in the Master Servicer's good faith and
reasonable judgment, is likely to materially and adversely affect the
ability of the Master Servicer to perform its obligations under this
Agreement.
(iii) The Master Servicer has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement, has
duly authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Master Servicer, enforceable against the
Master Servicer in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency, reorganization, moratorium and other
laws affecting the enforcement of creditors' rights generally, and (B)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(v) The Master Servicer is not in violation of, and its execution
and delivery of this Agreement and its performance and compliance with the
terms of this Agreement do not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Master Servicer's good faith and
reasonable judgment, is likely to affect materially and adversely either
the ability of the Master Servicer to perform its obligations under this
Agreement or the financial condition of the Master Servicer.
(vi) No litigation is pending or, to the best of the Master
Servicer's knowledge, threatened against the Master Servicer that would
prohibit the Master Servicer from entering into this Agreement or, in the
Master Servicer's good faith and reasonable judgment, is likely to
materially and adversely affect either the ability of the Master Servicer
to perform its obligations under this Agreement or the financial condition
of the Master Servicer.
(vii) Each officer or employee of the Master Servicer that has
responsibilities concerning the servicing and administration of the
Serviced Loans is covered by errors and omissions insurance in the amounts
and with the coverage required by Section 3.07(c). None of the Master
Servicer or any of its officers or employees that is involved in the
servicing or administration of the Serviced Loans has been refused such
coverage or insurance.
(viii) No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or
body is required for the consummation by the Master Servicer of the
transactions contemplated herein, except for those consents, approvals,
authorizations and orders that previously have been obtained and those
filings and registrations that previously have been completed.
(ix) The Master Servicer has examined each of the Sub-Servicing
Agreements entered into by the Master Servicer that will be in effect as
of the Closing Date with respect to the Serviced Loans, and each such
Sub-Servicing Agreement complies with the requirements of Section 3.22(a)
in all material respects.
(b) The representations and warranties of the Master Servicer set
forth in Section 2.05(a) shall survive the execution and delivery of this
Agreement and inure to the benefit of the Persons for whose benefit they were
made for so long as the Trust remains in existence. Upon discovery by any of the
parties hereto of a breach of any of such representations and warranties that
materially and adversely affects the interests of the Certificateholders or any
party hereto, the party discovering such breach shall give prompt written notice
to each of the other parties hereto.
(c) Each successor Master Servicer (if any) shall be deemed to have
made, as of the date of its succession, each of the representations set forth in
Section 2.05(a), subject to such appropriate modifications to the representation
and warranty set forth in Section 2.05(a)(i) to accurately reflect such
successor's jurisdiction of organization and whether it is a corporation,
partnership, bank, association or other type of organization.
Section 2.06 Representations and Warranties of the Special Servicer.
(a) The Special Servicer hereby represents and warrants to the other
parties hereto and for the benefit of the Certificateholders and the Companion
Loan Holder(s), as of the Closing Date, that:
(i) The Special Servicer is duly organized, validly existing and in
good standing as a corporation under the laws of the State of Delaware,
and the Special Servicer is in compliance with the laws of each
jurisdiction in which any Mortgaged Property is located to the extent
necessary to perform its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Special
Servicer, and the performance and compliance with the terms of this
Agreement by the Special Servicer, do not violate the Special Servicer's
organizational documents or constitute a default (or an event that, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material agreement or other instrument to
which it is a party or that is applicable to it or any of its assets,
which default, in the Special Servicer's reasonable judgment, is likely to
materially and adversely effect either the ability of the Special Servicer
to perform its obligations under this Agreement or the financial condition
of the Special Servicer.
(iii) The Special Servicer has the full corporate power and
authority to enter into and consummate all transactions contemplated by
this Agreement, has duly authorized the execution, delivery and
performance of this Agreement, and has duly executed and delivered this
Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Special Servicer, enforceable against the
Special Servicer in accordance with the terms hereof, except as such
enforcement may be limited by (A) applicable bankruptcy, receivership,
insolvency, reorganization, liquidation, fraudulent transfer, moratorium
and other laws affecting the enforcement of creditors' rights generally,
and (B) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law.
(v) The Special Servicer is not in violation of, and its execution
and delivery of this Agreement and its performance and compliance with the
terms of this Agreement do not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Special Servicer's good faith and
reasonable judgment, is likely to affect materially and adversely either
the ability of the Special Servicer to perform its obligations under this
Agreement or the financial condition of the Special Servicer.
(vi) No litigation is pending or, to the best of the Special
Servicer's knowledge, threatened against the Special Servicer, the outcome
of which in the Special Servicer's reasonable judgment, is likely to
materially and adversely affect either the ability of the Special Servicer
to perform its obligations under this Agreement or the financial condition
of the Special Servicer.
(vii) Each officer or employee of the Special Servicer that has
responsibilities concerning the servicing and administration of the
Serviced Loans is covered by errors and omissions insurance in the amounts
and with the coverage required by Section 3.07(c).
(viii) No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or
body is required for the consummation by the Special Servicer of the
transactions contemplated herein, except for those consents, approvals,
authorizations and orders that previously have been obtained and those
filings and registrations that previously have been completed.
(b) The representations and warranties of the Special Servicer set
forth in Section 2.06(a) shall survive the execution and delivery of this
Agreement and inure to the benefit of the Persons for whose benefit they were
made for so long as the Trust remains in existence. Upon discovery by any of the
parties hereto of a breach of any of such representations and warranties that
materially and adversely affects the interests of the Certificateholders or any
party hereto, the party discovering such breach shall give prompt written notice
to each of the other parties hereto.
(c) Each successor Special Servicer (if any) shall be deemed to have
made, as of the date of its succession, each of the representations set forth in
Section 2.06(a), subject to such appropriate modifications to the representation
and warranty set forth in Section 2.06(a)(i) to accurately reflect such
successor's jurisdiction of organization and whether it is a corporation,
partnership, bank, association or other type of organization.
Section 2.07 Representations and Warranties of the Trustee and the
REMIC Administrator.
(a) Xxxxx Fargo Bank, N.A., both in its capacity as Trustee and in
its capacity as REMIC Administrator (the "Bank"), hereby represents and warrants
to the other parties hereto and for the benefit of the Certificateholders and
the Companion Loan Holder(s), 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 Creation of the Torre Mayor Loan REMIC Regular Interest
and the Torre Mayor Loan REMIC Residual Interest.
Concurrently with the assignment and in exchange for the Torre Mayor
Pari Passu Note A-2 Mortgage Loan, (a) the Trustee agrees to hold the Torre
Mayor Pari Passu Note A-2 Mortgage Loan included in the Torre Mayor Loan REMIC,
(b) the Trustee acknowledges the issuance of the Torre Mayor Loan REMIC Regular
Interest and the Torre Mayor Loan REMIC Residual Interest, and (c) the Depositor
assigns the Torre Mayor Loan REMIC Regular Interest to the Trustee as an asset
of REMIC I pursuant to Section 2.09. The Torre Mayor Loan REMIC Residual
Interest is evidenced by the Class R-TM Certificates issued pursuant to Section
2.09. The interests evidenced by the Torre Mayor Loan REMIC Residual Interest,
together with the Torre Mayor Loan REMIC Regular Interest, constitute the entire
beneficial ownership of the Torre Mayor Loan REMIC. The rights of the Holders of
the Class R-TM Certificates as owners of the Torre Mayor Loan REMIC Residual
Interest, and the rights of REMIC I (as holder of the Torre Mayor Loan REMIC
Regular Interest) to receive distributions from the proceeds of the Torre Mayor
Loan REMIC in respect of the Torre Mayor Loan REMIC Residual Interest and the
Torre Mayor Loan REMIC Regular Interest, respectively, and all ownership
interests evidenced or constituted by the Torre Mayor Loan REMIC Residual
Interest and the Torre Mayor Loan REMIC Regular Interest, shall be as set forth
in this Agreement.
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 and, in the case of the Torre Mayor Loan
REMIC Residual Interest issued pursuant to Section 2.08, the Class R-TM
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 (other than the Class A-SBFL
Certificates) in authorized denominations and has issued the Class A-SBFL
Regular Interest. The interests evidenced by the REMIC II Certificates (other
than the Class A-SBFL Certificates) and the Class A-SBFL Regular Interest
constitute the entire beneficial ownership of REMIC II. The rights of the
Holders of the REMIC II Certificates (other than the Class A-SBFL Certificates)
and the Class A-SBFL Regular Interest 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(j), 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.
(a) 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.
(b) 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 Class A-SBFL Regular
Interest to the Trustee for the benefit of the Holders of the Class A-SBFL
Certificates. The Trustee acknowledges the assignment to it of the Class A-SBFL
Regular 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
A-SBFL Certificates. Concurrently with the assignment to the Trustee of the
Class A-SBFL Regular 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 A-SBFL Certificates in authorized
denominations. The Class A-SBFL Certificates are hereby designated as undivided
beneficial interests in the portion of the Trust Fund consisting of the Class
A-SBFL Regular Interest, the Class A-SBFL Swap Contract and the Class A-SBFL
Floating Rate Account, which portion shall be treated as a grantor trust within
the meaning of subpart E, Part I of subchapter J of the Code.
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
Section 3.01 Administration of the Serviced Loans.
(a) Each of the Master Servicer and the Special Servicer shall
service and administer the Serviced Loans and any REO Properties that it is
obligated to service and administer pursuant to this Agreement on behalf of the
Trustee, and in the best interests and for the benefit of the Certificateholders
and, in the case of a Serviced Whole Loan, on behalf of the related Companion
Loan Holder(s) (as a collective whole taking into account the subordination of
any Subordinate Interest(s)) in accordance with any and all applicable laws, the
terms of this Agreement, the terms of the respective Serviced Loans and in the
case of a Serviced Whole Loan, the related Intercreditor Agreement, and, to the
extent consistent with the foregoing, in accordance with the Servicing Standard.
Without limiting the foregoing, and subject to Section 3.21, (i) the Master
Servicer shall service and administer all Performing Serviced Loans, and (ii)
the Special Servicer shall service and administer (x) each Serviced Loan (other
than a Corrected Serviced Loan) as to which a Servicing Transfer Event has
occurred and is continuing, and (y) each REO Property; provided, however, that
the Master Servicer shall continue to collect information and prepare all
reports to the Trustee required hereunder with respect to any Specially Serviced
Loans and REO Properties (and the related REO Serviced Loans), and further to
render such incidental services with respect to any Specially Serviced Loans and
REO Properties as are specifically provided for herein; and provided, further,
that the Special Servicer shall render such incidental services with respect to
Performing Serviced Loans as are specifically provided for herein. The Master
Servicer shall not, on behalf of the Trust, obtain title to a Mortgaged
Property.
(b) Subject to Section 3.01(a) the Master Servicer and the Special
Servicer shall each have full power and authority, acting alone or through
Sub-Servicers, to do or cause to be done any and all things in connection with
such servicing and administration that it may deem necessary or desirable.
Without limiting the generality of the foregoing, each of the Master Servicer
(with respect to Performing Serviced Loans and Corrected Serviced Loans) and the
Special Servicer (with respect to Specially Serviced Loans and REO Serviced
Loans), in its own name or in the name of the Trustee, is hereby authorized and
empowered by the Trustee to execute and deliver, on behalf of the
Certificateholders and if a Serviced Whole Loan is affected, the related
Companion Loan Holder(s), the Trustee or any of them: (i) any and all financing
statements, control agreements, continuation statements and other documents or
instruments necessary to perfect or maintain the lien created by any Mortgage or
other security document in the related Mortgage File on the related Mortgaged
Property and other related collateral; (ii) any and all instruments of
satisfaction or cancellation, or of partial or full release or discharge, and
all other comparable instruments; and (iii) subject to Sections 3.08 and 3.20,
any and all assumptions, modifications, waivers, substitutions, extensions,
amendments and consents. Subject to Section 3.10, the Trustee shall, at the
written request of a Servicing Officer of the Master Servicer or the Special
Servicer, furnish, or cause to be so furnished, to the Master Servicer or the
Special Servicer, as appropriate, any limited powers of attorney and other
documents (each of which shall be prepared by the Master Servicer or the Special
Servicer, as applicable) necessary or appropriate to enable it to carry out its
servicing and administrative duties hereunder; provided, that the Trustee shall
not be held liable for any misuse of any such power of attorney by the Master
Servicer or the Special Servicer and the Trustee will be indemnified pursuant
to, and subject to the limitations set forth in, Section 8.05 for any losses or
expenses it incurs due to the Master Servicer's use of such power of attorney.
(c) Notwithstanding anything contained herein to the contrary,
neither the Master Servicer nor the Special Servicer shall without the Trustee's
written consent: (i) initiate any action, suit or proceeding solely under the
Trustee's name without indicating the Master Servicer's or such Special
Servicer's, as applicable, representative capacity, or (ii) take any action with
the intent to cause, and that actually does cause, the Trustee to be registered
to do business in any state.
The Master Servicer and/or the Special Servicer shall indemnify the
Trustee for any and all costs, liabilities and expenses incurred by the Trustee
in connection with the negligent or willful misuse of such powers of attorney by
the Master Servicer or the Special Servicer, as applicable.
(d) The relationship of each of the Master Servicer and the Special
Servicer to the Trustee and, unless they are the same Person, each other under
this Agreement is intended by the parties to this Agreement to be that of an
independent contractor and not that of a joint venturer, partner or agent.
(e) The parties hereto acknowledge that each of the KinderCare
Portfolio Pari Passu Note A-2 Mortgage Loan, the Desert Passage Pari Passu Note
A-1 Mortgage Loan and the Torre Mayor Pari Passu Note A-2 Mortgage 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 "Lenders" under the KinderCare Portfolio Intercreditor Agreement, including
with respect to the allocation of collections on or in respect of the KinderCare
Portfolio Whole Loan and the making of payments to the "Lenders" in accordance
with Sections 1(b) and 1(c) of the KinderCare Portfolio Intercreditor Agreement,
(ii) the respective rights and obligations of the "Holders" under the Desert
Passage Intercreditor Agreement, including with respect to the allocation of
collections on or in respect of the Desert Passage Whole Loan and the making of
payments to the "Lenders" in accordance with Section 1(b) of the Desert Passage
Intercreditor Agreement, and (iii) the respective rights and obligations of the
"Lenders" under the Torre Mayor A Notes Intercreditor Agreement and the
respective rights and obligations of the "Holders" under the Torre Mayor A/B/C
Intercreditor Agreement, including with respect to the allocation of collections
on or in respect of the Torre Mayor Whole Loan and the making of payments to the
"Holders" in accordance with Sections 3 and 4 of the Torre Mayor A/B/C
Intercreditor Agreement.
In the event that a Mortgage Loan included in a Serviced Whole Loan
is no longer part of the Trust Fund and the servicing and administration of such
Whole Loan is to be governed by a separate servicing agreement and not by this
Agreement, as contemplated by Section 2 of the Desert Passage Intercreditor
Agreement, in the case of the Desert Passage Whole Loan, the Master Servicer
and, if such Whole Loan is then being specially serviced hereunder, the Special
Servicer, shall continue to act in such capacities under such separate servicing
agreement, which agreement shall be reasonably acceptable to the Master Servicer
and/or the Special Servicer, as the case may be, and shall contain servicing and
administration, limitation of liability, indemnification and servicing
compensation provisions substantially similar to the corresponding provisions of
this Agreement, except for the fact that such Whole Loan and the related
Mortgaged Properties shall be the sole assets serviced and administered
thereunder and the sole source of funds thereunder.
Notwithstanding the foregoing, if, at such time as a Mortgage Loan
included in a Serviced Whole Loan shall no longer be part of the Trust Fund, a
separate servicing agreement with respect to such Whole Loan has not been
entered into, then, until such time as a separate servicing agreement is entered
into and any required rating confirmation is obtained, and notwithstanding that
such Mortgage Loan is no longer part of the Trust Fund, the Master Servicer and,
if applicable, the Special Servicer shall continue to service such Whole Loan or
any related REO Property, as the case may be, under this Agreement as if it were
a separate servicing agreement, for the benefit of the parties under the related
Intercreditor Agreement, with: (i) such Whole Loan and the related Mortgaged
Property constituting the sole assets thereunder; (ii) references to the
"Trustee", "Trust" and "Certificateholders" (or any sub-group thereof) being
construed to refer to the new "A Noteholder" or its equivalent under the related
Intercreditor Agreement, as applicable; and (iii) references to the "Directing
Certificateholder" or its equivalent being construed to refer to the
"Controlling Holder" or its equivalent under the related Intercreditor
Agreement; provided, however, that from and after the date that such Mortgage
Loan is no longer part of the Trust Fund and until the servicing and
administration of such Whole Loan is to be governed by a separate servicing
agreement and not by this Agreement, and notwithstanding any other provision
hereof, (i) no P&I Advances shall be made by the Master Servicer, Special
Servicer or the Trustee in respect of such Mortgage Loan, and (ii) the holders
of such Whole Loan shall be solely responsible for all fees, costs, expenses,
liabilities, indemnities and other amounts payable or reimbursable to any Person
in respect of such Mortgage Loan and any related REO Property and in no event
shall any such fees, costs, expenses, liabilities, indemnities, or other amounts
be payable out of the Mortgage Pool or any collections relating thereto (except
to the extent accrued and unpaid while such Mortgage Loan was included as part
of the Trust Fund). Subject to any express provision contained in the related
Intercreditor Agreement to the contrary, nothing herein shall be deemed to
override the provisions of an Intercreditor Agreement with respect to the rights
of the Companion Loan Holder(s) thereunder. With respect to the servicing and
administration duties and obligations with respect to the Serviced Whole Loan,
in the event of any inconsistency between the provisions of an Intercreditor
Agreement and the provisions of this Agreement, or as to any matter on which
such Intercreditor Agreement is silent or makes reference to this Agreement,
this Agreement shall govern.
(f) The parties hereto acknowledge that the KinderCare Portfolio
Pari Passu Note A-2 Mortgage Loan is further subject to the servicing under and
all other terms and conditions of the KinderCare Portfolio Pooling Agreement.
The parties hereto further recognize the respective rights and obligations of
the "Lead Lender", the "Note X-0 Xx-Xxxxxx" and the "Note X-0 Xx-Xxxxxx" under
the KinderCare Portfolio Intercreditor Agreement, including with respect to (i)
the allocation of collections on or in respect of the KinderCare Portfolio Pari
Passu Note A-2 in accordance with Sections 1(b) and 1(c) of the KinderCare
Portfolio Intercreditor Agreement, (ii) the making of payments to the holders of
the KinderCare Portfolio Pari Passu Note A-1, the KinderCare Portfolio Pari
Passu Note A-2 and the KinderCare Portfolio Pari Passu Note A-3 in accordance
with Sections 1(b) and 1(c) of the KinderCare Portfolio Intercreditor Agreement,
and (iii) the purchase of the KinderCare Portfolio Pari Passu Note A-2 Mortgage
Loan by the Purchase Option Holder (as defined in the KinderCare Portfolio
Intercreditor Agreement) or its designee in accordance with Section 5 of the
KinderCare Portfolio Intercreditor Agreement.
(g) Notwithstanding anything herein to the contrary, the parties
hereto acknowledge and agree that the Master Servicer's obligations and
responsibilities hereunder and the Master Servicer's authority with respect to
the KinderCare Portfolio Pari Passu Note A-2 Mortgage Loan are limited by and
subject to the terms of the KinderCare Portfolio Intercreditor Agreement and the
rights of the KinderCare Portfolio Master Servicer and the KinderCare Portfolio
Special Servicer with respect thereto under the KinderCare Portfolio Pooling
Agreement. The Master Servicer shall use reasonable best efforts consistent with
the Servicing Standard to enforce the rights of the Trustee (as holder of the
KinderCare Portfolio Pari Passu Note A-2 Mortgage Loan) under the KinderCare
Portfolio Intercreditor Agreement and the KinderCare Portfolio Pooling
Agreement. The Master Servicer shall take such actions as it shall deem
reasonably necessary to facilitate the servicing of the KinderCare Portfolio
Pari Passu Note A-2 Mortgage Loan by the KinderCare Portfolio Master Servicer
and the KinderCare Portfolio Special Servicer including, but not limited to,
delivering appropriate Requests for Release to the Trustee and Custodian (if
any) to deliver any portion of the related Mortgage File to the KinderCare
Portfolio Master Servicer or KinderCare Portfolio Special Servicer under the
KinderCare Portfolio Pooling Agreement. The Trustee, on behalf of the
Certificateholders, hereby assumes the obligations of the "Note X-0 Xx-Xxxxxx"
under the KinderCare Portfolio Intercreditor Agreement (other than with respect
to the representations and warranties of such Note X-0 Xx-Xxxxxx); provided that
the Master Servicer, on behalf of the Trustee, will perform any
servicing-related obligations assigned therein to such Note A-2 Co-Lender.
The parties hereto acknowledge that the KinderCare Portfolio Pari
Passu Note A-2 Mortgage Loan is subject to the terms and conditions of the
KinderCare Portfolio Intercreditor Agreement and further acknowledge that,
pursuant to the KinderCare Portfolio Intercreditor Agreement, (i) the KinderCare
Portfolio Pari Passu Note A-2 Mortgage Loan is to be serviced and administered
by the KinderCare Portfolio Master Servicer in accordance with the KinderCare
Portfolio Pooling Agreement, and (ii) in the event that (A) the KinderCare
Portfolio Pari Passu Notes are no longer part of the trust fund established
under the KinderCare Portfolio Pooling Agreement and (B) the KinderCare
Portfolio Pari Passu Note A-2 Mortgage Loan is included in the Trust Fund, then,
as set forth in the KinderCare Portfolio Intercreditor Agreement, the KinderCare
Portfolio Pari Passu Note A-2 Mortgage Loan shall continue to be serviced in
accordance with the applicable provisions of the KinderCare Portfolio Pooling
Agreement, with each of the KinderCare Portfolio Master Servicer and the
KinderCare Portfolio Special Servicer continuing to act in their respective
capacities thereunder (or by such successor master servicer or special servicer
as meets the requirements of the KinderCare Portfolio Pooling Agreement) until
such time as a new servicing agreement has been agreed to by the parties to the
KinderCare Portfolio Intercreditor Agreement in accordance with the provisions
of such agreement and confirmation has been obtained from the Rating Agencies
that such new servicing agreement would not result in a downgrade, qualification
or withdrawal of the then current ratings of any Class of Certificates or Class
of KinderCare Portfolio Pari Passu Note A-1 Companion Loan Securities then
outstanding.
The parties hereto agree and acknowledge that, pursuant to the
KinderCare Portfolio Intercreditor Agreement, the Trust Fund shall be
responsible for a proportionate share of reimbursement for any KinderCare
Portfolio Nonrecoverable Servicing Advances (together with interest thereon, as
set forth in the KinderCare Portfolio Pooling Agreement) and any Additional
Trust Fund Expenses (as defined in the KinderCare Portfolio Pooling Agreement)
that relates exclusively to the servicing of the KinderCare Portfolio Pari Passu
Note A-2 Mortgage Loan. In this regard,
(i) if the KinderCare Portfolio Pooling Agreement permits the
KinderCare Portfolio Master Servicer, the KinderCare Portfolio Special
Servicer or the KinderCare Portfolio Trustee to seek reimbursement for
such amounts out of general collections in the trust fund created pursuant
to the KinderCare Portfolio Pooling Agreement, then the Master Servicer,
on behalf of the Trust Fund, shall reimburse such trust fund for the Trust
Fund's proportionate share of such amounts out of general collections in
the Trust Fund; and
(ii) if the KinderCare Portfolio Pooling Agreement does not permit
such parties to seek reimbursement for such amounts out of general
collections in the trust fund created pursuant to the KinderCare Portfolio
Pooling Agreement, then the Master Servicer, on behalf of the Trust Fund,
shall reimburse such parties for the Trust Fund's proportionate share of
such amounts out of general collections in the Trust Fund.
Any such amounts shall be reimbursed to such other trust fund out of
collections of principal and other amounts in the Certificate Account in the
same manner as a Nonrecoverable Advance, as set forth in Section 3.05(a).
Within 30 days of the Closing Date, the Master Servicer shall
deliver notice to the KinderCare Portfolio Master Servicer and the KinderCare
Portfolio Trustee of the issuance of the Certificates and the securitization of
the KinderCare Portfolio Pari Passu Note A-2 Mortgage Loan. Such notice shall
include contact information for the Master Servicer, the Special Servicer, the
Trustee and the Directing Certificateholder, as well as an executed copy of this
Agreement; provided, however, if the Master Servicer has not itself received a
final copy of this Agreement within 21 days of the Closing Date, then the Master
Servicer may forward a working draft and send a final copy as promptly as
practicable after its receipt of the same.
(h) The parties hereto acknowledge that the Torre Mayor Pari Passu
Note A-2 Mortgage Loan is further subject to servicing under and all other terms
and conditions of the Torre Mayor Pooling Agreement.
(i) Notwithstanding anything herein to the contrary, the parties
hereto acknowledge and agree that the Master Servicer's obligations and
responsibilities hereunder and the Master Servicer's authority with respect to
the Torre Mayor Pari Passu Note A-2 Mortgage Loan are limited by and subject to
the terms of the Torre Mayor Intercreditor Agreements and the rights of the
Torre Mayor Master Servicer and the Torre Mayor Special Servicer with respect
thereto under the Torre Mayor Pooling Agreement. The Master Servicer shall use
reasonable best efforts consistent with the Servicing Standard to enforce the
rights of the Trustee (as holder of the Torre Mayor Pari Passu Note A-2 Mortgage
Loan) under the Torre Mayor Intercreditor Agreements and the Torre Mayor Pooling
Agreement. The Master Servicer shall take such actions as it shall deem
reasonably necessary to facilitate the servicing of the Torre Mayor Pari Passu
Note A-2 Mortgage Loan by the Torre Mayor Master Servicer and the Torre Mayor
Special Servicer including, but not limited to, delivering appropriate Requests
for Release to the Trustee and Custodian (if any) to deliver any portion of the
related Mortgage File to the Torre Mayor Master Servicer or Torre Mayor Special
Servicer under the Torre Mayor Pooling Agreement. The Trustee, on behalf of the
Certificateholders, hereby assumes the obligations of the "Co-Lender" under the
Torre Mayor A Notes Intercreditor Agreement (other than with respect to the
representations and warranties of such Co-Lender); provided that the Master
Servicer, on behalf of the Trustee, will perform any servicing-related
obligations assigned therein to such Co-Lender.
The parties hereto further acknowledge that, pursuant to the Torre
Mayor Intercreditor Agreements, (i) the Torre Mayor Pari Passu Note A-2 Mortgage
Loan is to be serviced and administered by the Torre Mayor Master Servicer in
accordance with the Torre Mayor Pooling Agreement, and (ii) in the event that
(A) the Torre Mayor Pari Passu Note A-1 is no longer part of the trust fund
established under the Torre Mayor Pooling Agreement and (B) the Torre Mayor Pari
Passu Note A-2 Mortgage Loan is included in the Trust Fund, then, as set forth
in the Torre Mayor Intercreditor Agreement, the Torre Mayor Pari Passu Note A-2
Mortgage Loan shall continue to be serviced in accordance with the applicable
provisions of the Torre Mayor Pooling Agreement, with each of the Torre Mayor
Master Servicer and the Torre Mayor Special Servicer continuing to act in their
respective capacities thereunder (or by such successor master servicer or
special servicer as meets the requirements of the Torre Mayor Intercreditor
Agreements) until such time as a new servicing agreement has been agreed to by
the parties to the Torre Mayor A/B/C Intercreditor Agreement in accordance with
the provisions of such agreement and confirmation has been obtained from the
Rating Agencies that such new servicing agreement would not result in a
downgrade, qualification or withdrawal of the then current ratings of any Class
of Certificates or Class of Torre Mayor Pari Passu Note A-1 Companion Loan
Securities then outstanding.
The parties hereto agree and acknowledge that, pursuant to the Torre
Mayor Intercreditor Agreements, the Trust Fund shall be responsible for a
proportionate share of reimbursement for any Torre Mayor Nonrecoverable
Servicing Advances (together with interest thereon, as set forth in the Torre
Mayor Pooling Agreement) and any Additional Trust Fund Expenses (as defined in
the Torre Mayor Pooling Agreement) that relates to the servicing of the Torre
Mayor Whole Loan. In this regard,
(i) if the Torre Mayor Pooling Agreement permits the Torre Mayor
Master Servicer, the Torre Mayor Special Servicer or the Torre Mayor
Trustee to seek reimbursement for such amounts out of general collections
in the trust fund created pursuant to the Torre Mayor Pooling Agreement,
then the Master Servicer, on behalf of the Trust Fund, shall reimburse
such trust fund for the Trust Fund's proportionate share of such amounts
out of general collections in the Trust Fund; and
(ii) if the Torre Mayor Pooling Agreement does not permit such
parties to seek reimbursement for such amounts out of general collections
in the trust fund created pursuant to the Torre Mayor Pooling Agreement,
then the Master Servicer, on behalf of the Trust Fund, shall reimburse
such parties for the Trust Fund's proportionate share of such amounts out
of general collections in the Trust Fund.
Any such amounts shall be reimbursed to such other trust fund out of
collections of principal and other amounts in the Certificate Account in the
same manner as a Nonrecoverable Advance, as set forth in Section 3.05(a).
Within 30 days of the Closing Date, the Master Servicer shall
deliver notice to the Torre Mayor Master Servicer and the Torre Mayor Trustee of
the issuance of the Certificates and the securitization of the Torre Mayor Pari
Passu Note A-2 Mortgage Loan. Such notice shall include contact information for
the Master Servicer, the Special Servicer, the Trustee and the Directing
Certificateholder, as well as an executed copy of this Agreement; provided,
however, if the Master Servicer has not itself received a final copy of this
Agreement within 21 days of the Closing Date, then the Master Servicer may
forward a working draft and send a final copy as promptly as practicable after
its receipt of the same.
Section 3.02 Collection of Mortgage Loan Payments.
(a) The Master Servicer (with respect to Performing Serviced Loans)
and the Special Servicer (with respect to Specially Serviced Loans) shall
undertake reasonable efforts to collect all payments called for under the terms
and provisions of the Serviced Loans and shall follow such collection procedures
as are consistent with applicable law, the express terms of this Agreement and
the related loan documents and, to the extent consistent with the foregoing, the
Servicing Standard, provided that neither the Master Servicer nor the Special
Servicer shall, with respect to any ARD Loan after its Anticipated Repayment
Date, take any enforcement action with respect to the payment of Excess Interest
(other than the making of requests for its collection), unless (i) the taking of
an enforcement action with respect to the payment of other amounts due under
such Serviced Loan is, in the good faith and reasonable judgment of the Special
Servicer, and without regard to such Excess Interest, also necessary,
appropriate and consistent with the Servicing Standard or (ii) all other amounts
due under such Loan have been paid, the payment of such Excess Interest has not
been forgiven in accordance with Section 3.20 and, in the good faith and
reasonable judgment of the Special Servicer, the Liquidation Proceeds expected
to be recovered in connection with such enforcement action will cover the
anticipated costs of such enforcement action and, if applicable, any associated
Advance Interest. Consistent with the foregoing, the Special Servicer (as to
Specially Serviced Loans) may waive any Default Charges in connection with any
specific delinquent payment on a Serviced Loan it is obligated to service
hereunder. Consistent with the foregoing and in each case subject to the
Servicing Standard, the Master Servicer (or if applicable a Sub-Servicer) may
grant a one time waiver of Default Charges in connection with a late payment,
provided that for any waiver thereafter of Default Charges in connection with a
Serviced Loan that is 30 days or more past due, and with respect to which
Advances, Advance Interest or Additional Trust Fund Expenses have been incurred
and remain unreimbursed to the Trust, the Master Servicer must obtain the
consent of the Directing Certificateholder before granting such waiver subject
to the obligation of the Master Servicer to act in accordance with applicable
law and the Servicing Standard. The Directing Certificateholder's consent shall
be deemed granted if it has not responded in writing (which may be via fax or
e-mail) within ten Business Days of its receipt of such request.
(b) (i) At least 90 days prior to the maturity date of each Balloon
Loan that is included in the Trust Fund, the Master Servicer shall send a notice
to the related Mortgagor of such maturity date (with a copy to be sent to the
Special Servicer) and shall request written confirmation that the Balloon
Payment will be paid by such maturity date.
(ii) Within 60 days after the Closing Date (or within such shorter
period as may be required by the applicable Letter of Credit), the Master
Servicer shall notify each provider of a Letter of Credit for any Serviced
Loan that the Master Servicer or the Special Servicer, on behalf of the
Trustee for the benefit of the Certificateholders, shall be the
beneficiary under each such Letter of Credit. The Master Servicer shall
maintain and execute each such Letter of Credit, if applicable, in
accordance with the related loan documents.
(iii) Within 60 days after the later of (A) the Closing Date as to
each Serviced Loan that is secured by the interest of the related
Mortgagor under a Ground Lease (or within such shorter period as may be
required by the applicable Ground Lease) and (B) the Master Servicer's
receipt of a copy of the related Ground Lease, the Master Servicer shall
notify the related ground lessor of the transfer of such Mortgage Loan to
the Trust pursuant to this Agreement and inform such ground lessor that
any notices of default under the related Ground Lease should thereafter be
forwarded to the Master Servicer.
All amounts received by the Trust with respect to a Whole Loan shall
be applied to amounts due and owing thereunder (including for principal and
accrued and unpaid interest) in accordance with the express provisions of this
Agreement, the related Mortgage Notes, the related Mortgage, the related loan
agreement, if any, and the related Intercreditor Agreement.
Section 3.03 Collection of Taxes, Assessments and Similar Items;
Servicing Accounts; Servicing Advances; Reserve Accounts.
(a) The Master Servicer shall, as to all the Serviced Loans,
establish and maintain one or more accounts (the "Servicing Accounts"), into
which all Escrow Payments received by it with respect to the Serviced Loans
shall be deposited and retained. Subject to any terms of the related loan
documents that specify the nature of the account in which Escrow Payments shall
be held, each Servicing Account shall be an Eligible Account. Withdrawals of
amounts so collected in respect of any Serviced Loan (and interest earned
thereon) from a Servicing Account may be made only: (i) to effect payment of
real estate taxes, assessments, insurance premiums, ground rents (if applicable)
and comparable items in respect of related Mortgaged Property; (ii) to reimburse
the Master Servicer, the Special Servicer or the Trustee, as applicable, for any
unreimbursed Servicing Advances made thereby to cover any of the items described
in the immediately preceding clause (i); (iii) to refund to the related
Mortgagor any sums as may be determined to be overages; (iv) to pay interest or
other income, if required and as described below, to the related Mortgagor on
balances in the Servicing Account (or, if and to the extent not payable to the
related Mortgagor, to pay such interest or other income (up to the amount of any
Net Investment Earnings in respect of such Servicing Account for each Collection
Period) to the Master Servicer); (v) disburse Insurance Proceeds if required to
be applied to the repair or restoration of the related Mortgaged Property; or
(vi) to clear and terminate the Servicing Account at the termination of this
Agreement in accordance with Section 9.01. The Master Servicer shall pay or
cause to be paid to the related Mortgagor interest, if any, earned on the
investment of funds in Servicing Accounts maintained thereby, if required by law
or the terms of the related Serviced Loan. If the Master Servicer shall deposit
into a Servicing Account any amount not required to be deposited therein, it may
at any time withdraw such amount from such Servicing Account, any provision
herein to the contrary notwithstanding. The Special Servicer shall within two
Business Days after receipt deliver all Escrow Payments received by it to the
Master Servicer for deposit into the applicable Servicing Account.
(b) The Master Servicer shall as to each Serviced Loan, including
each Specially Serviced Loan, (i) maintain accurate records with respect to the
related Mortgaged Property reflecting the status of real estate taxes,
assessments and other similar items that are or may become a lien thereon and
the status of insurance premiums and any ground rents payable in respect thereof
and (ii) use reasonable efforts consistent with the Servicing Standard to
obtain, from time to time, all bills for the payment of such items (including
renewal premiums) and effect payment thereof prior to the applicable penalty or
termination date. For purposes of effecting any such payment, the Master
Servicer shall apply Escrow Payments as allowed under the terms of the related
loan documents; provided that if such Serviced Loan does not require the related
Mortgagor to escrow for the payment of real estate taxes, assessments, insurance
premiums, ground rents (if applicable) and similar items, each of the Master
Servicer and the Special Servicer shall use reasonable efforts, as to those
Serviced Loans it is obligated to service hereunder, and subject to and in
accordance with the Servicing Standard, enforce the requirement of the related
Mortgage that the Mortgagor make payments in respect of such items at the time
they first become due.
(c) In accordance with the Servicing Standard and for all Serviced
Loans, but subject to Section 3.11(h), the Master Servicer shall make a
Servicing Advance with respect to each Mortgaged Property (including each
Mortgaged Property relating to a Specially Serviced Loan) all such funds as are
necessary for the purpose of effecting the timely payment of (i) real estate
taxes, assessments and other similar items, (ii) ground rents (if applicable),
and (iii) premiums on Insurance Policies, in each instance prior to the
applicable penalty or termination date if and to the extent that (x) Escrow
Payments (if any) collected from the related Mortgagor are insufficient to pay
such item when due, and (y) the related Mortgagor has failed to pay such item on
a timely basis; provided that, in the case of amounts described in the preceding
clause (i), the Master Servicer shall not make a Servicing Advance of any such
amount until the Master Servicer (in accordance with the Servicing Standard) has
actual knowledge that the Mortgagor has not made such payments and reasonably
anticipates that such amounts will not be paid by the related Mortgagor on or
before the applicable penalty date. All such Advances shall be reimbursable in
the first instance from related collections from the Mortgagor and further as
provided in Section 3.05. No costs incurred by the Master Servicer in effecting
the payment of real estate taxes, assessments and, if applicable, ground rents
on or in respect of such Mortgaged Properties shall, for purposes hereof,
including calculating monthly distributions to Certificateholders, be added to
the respective unpaid principal balances or Stated Principal Balances of the
related Serviced Loans, notwithstanding that the terms of such Serviced Loans so
permit; provided that this sentence shall not be construed to limit the rights
of the Master Servicer on behalf of the Trust or, if a Serviced Whole Loan is
involved, on behalf of the related Companion Loan Holder(s), to enforce any
obligations of the related Mortgagor under such Serviced Loan.
The parties hereto acknowledge that, pursuant to the KinderCare
Portfolio Pooling Agreement, the KinderCare Portfolio Master Servicer is
obligated to make servicing advances with respect to the KinderCare Portfolio
Pari Passu Note A-2 Mortgage Loan. The KinderCare Portfolio Master Servicer
shall be entitled to reimbursement for KinderCare Portfolio Nonrecoverable
Servicing Advances (with any accrued and unpaid interest thereon provided for
under the KinderCare Portfolio Pooling Agreement) in the manner set forth in the
KinderCare Portfolio Pooling Agreement and the KinderCare Portfolio
Intercreditor Agreement.
The parties hereto acknowledge that, pursuant to the Torre Mayor
Pooling Agreement, the Torre Mayor Master Servicer is obligated to make
servicing advances with respect to the Torre Mayor Pari Passu Note A-2 Mortgage
Loan. The Torre Mayor Master Servicer shall be entitled to reimbursement for
Torre Mayor Nonrecoverable Servicing Advances (with any accrued and unpaid
interest thereon provided for under the Torre Mayor Pooling Agreement) in the
manner set forth in the Torre Mayor Pooling Agreement and the Torre Mayor
Intercreditor Agreements.
(d) The Master Servicer shall establish and maintain, as applicable,
one or more accounts (the "Reserve Accounts"), in which all Reserve Funds, if
any, received by it with respect to the Serviced Loans shall be deposited and
retained. As and to the extent consistent with the Servicing Standard and the
related loan documents, the Master Servicer may make withdrawals of amounts so
deposited, and draws under any Letter of Credit delivered in lieu of Reserve
Funds, to pay for, or to reimburse the related Mortgagor in connection with, the
costs associated with the related tenant improvements, leasing commissions,
repairs, replacements, capital improvements and/or environmental testing and
remediation, litigation and/or other special expenses at or with respect to the
related Mortgaged Property for which such Reserve Funds were intended or such
Letter of Credit was delivered and, in the case of a Reserve Fund constituting
debt service reserve accounts, to apply amounts on deposit therein in respect of
principal and interest on the related Serviced Loan. In addition, as and to the
extent consistent with the Servicing Standard and the related loan documents,
the Master Servicer may make withdrawals of amounts so deposited, and draws
under any Letter of Credit so delivered, to prepay the Serviced Loan in the
event certain leasing or other economic criteria are not satisfied at the
related Mortgaged Property (but only if such prepayment is required by the
related loan documents or continuing to hold such funds or Letter of Credit as
Additional Collateral is not consistent with the Servicing Standard), or to
release such amounts to the related Mortgagor or otherwise apply such amounts
for any other appropriate purpose in the event that such criteria are satisfied,
and the Master Servicer may return any Letter of Credit so delivered to the
related Mortgagor. Subject to the terms of the related loan documents, each
Reserve Account shall be an Eligible Account. Interest and other income, if any,
earned on funds on deposit in any Reserve Account held by the Master Servicer
(to the extent of any Net Investment Earnings with respect to such Reserve
Account for any Collection Period), shall be for the benefit of and payable to
the Master Servicer, unless otherwise required to be paid to the related
Mortgagor by law or the terms of the related Serviced Loan. Any out-of-pocket
expenses incurred by the Master Servicer to enable the Master Servicer to make
any draw under any Letter of Credit shall constitute a Servicing Advance, and
the Master Servicer shall make reasonable efforts to recover such expenses from
the related Mortgagor to the extent the Mortgagor is required to pay such
expenses under the terms of the related loan documents.
(e) To the extent an operations and maintenance plan is required to
be established and executed pursuant to the terms of a Serviced Loan, the Master
Servicer shall request from the Mortgagor written confirmation thereof within a
reasonable time after the later of the Closing Date and the date as of which
such plan is required to be established or completed. To the extent any repairs,
capital improvements, actions or remediations are required to have been taken or
completed pursuant to the terms of the Serviced Loan, the Master Servicer shall
request from the Mortgagor written confirmation of such actions and remediations
within a reasonable time after the later of the Closing Date and the date as of
which such action or remediations are required by the related loan documents to
be or to have been taken or completed. To the extent a Mortgagor shall fail to
promptly respond to any inquiry described in this Section 3.03(e), the Master
Servicer shall determine whether the related Mortgagor has failed to perform its
obligations under the related Serviced Loan and report any such failure to the
Special Servicer, the Trustee, the related Companion Loan Holder(s) (if a
Serviced Whole Loan is involved), and the Directing Certificateholder within a
reasonable time after the date as of which such actions or remediations are
required to be or to have been taken or completed. The Master Servicer shall
promptly give written notice to the Trustee, the Special Servicer, the related
Companion Loan Holder(s) (if a Serviced Whole Loan is involved), and the
Directing Certificateholder if the Master Servicer shall determine that any
Mortgagor has failed to perform its obligations under the related loan documents
in respect of environmental matters.
(f) Promptly following the Closing Date, the Trustee shall send
written notice (in the form attached hereto as Exhibit R) to the KinderCare
Portfolio Master Servicer stating that, as of the Closing Date, the Trustee is
the holder of the KinderCare Portfolio Pari Passu Note A-2 Mortgage Loan and
directing the KinderCare Portfolio Master Servicer to remit to the Master
Servicer all amounts payable to, and to forward, deliver or otherwise make
available, as the case may be, to the Master Servicer all reports, statements,
documents, communications and other information that are to be forwarded,
delivered or otherwise made available to, the holder of the KinderCare Portfolio
Pari Passu Note A-2 Mortgage Loan under the KinderCare Portfolio Intercreditor
Agreement and the KinderCare Portfolio Pooling Agreement. The Master Servicer
shall, on the day of receipt thereof, deposit into the Certificate Account all
amounts received with respect to the KinderCare Portfolio Pari Passu Note A-2
Mortgage Loan, the KinderCare Portfolio Mortgaged Property or any related REO
Property.
(g) Promptly following the Closing Date, the Trustee shall send
written notice (in the form attached hereto as Exhibit R) to the Torre Mayor
Master Servicer and the Torre Mayor Trustee stating that, as of the Closing
Date, the Trustee is the holder of the Torre Mayor Pari Passu Note A-2 Mortgage
Loan and directing the Torre Mayor Master Servicer to remit to the Master
Servicer all amounts payable to, and to forward, deliver or otherwise make
available, as the case may be, to the Master Servicer all reports, statements,
documents, communications and other information that are to be forwarded,
delivered or otherwise made available to, the holder of the Torre Mayor Pari
Passu Note A-2 Mortgage Loan under the Torre Mayor Intercreditor Agreements and
the Torre Mayor Pooling Agreement. The Master Servicer shall, on the day of
receipt thereof, deposit into the Certificate Account all amounts received with
respect to the Torre Mayor Pari Passu Note A-2 Mortgage Loan, the Torre Mayor
Mortgaged Property or any related REO Property.
Section 3.04 Certificate Account, Distribution Account, Torre Mayor
Loan REMIC Distribution Account, REMIC I Distribution Account, REMIC II
Distribution Account, Excess Interest Distribution Account, Excess Liquidation
Proceeds Account, the Class A-SBFL Floating Rate Account and Serviced 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. The
Certificate Account shall be an Eligible Account. The Master Servicer shall
deposit or cause to be deposited into the Certificate Account, within one
Business Day of receipt (in the case of payments by Mortgagors or other
collections on or in respect of the Mortgage Loans) or as otherwise required
hereunder, the following payments and collections received or made by or on
behalf of it (and, with respect to any Non-Serviced Mortgage Loan, to the extent
received pursuant to the related Intercreditor Agreement) 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;
(xi) any Loss of Value Payments, as set forth in Section 3.05(g);
(xii) any Cayman Islands Gross-Up Payments remitted by the related
Mortgage Loan Seller in its sole discretion to the Trust; and
(xiii) any Mexico Gross-Up Payments remitted by the related Mortgage
Loan Seller in its sole discretion to the Trust;
provided that any amounts described above (other than clause (v) above) that
relate to a Serviced Whole Loan or any related REO Property (other than
Liquidation Proceeds derived from the sale of the related Mortgage Loan pursuant
to Section 3.18 to or through a related Companion Loan Holder pursuant to the
related Intercreditor Agreement) shall be deposited into the related Serviced
Whole Loan Custodial Account, and, in any such case, shall thereafter be
transferred as provided in Section 3.05(f).
The foregoing requirements for deposit into the Certificate Account
shall be exclusive. Without limiting the generality of the foregoing, actual
payments from Mortgagors in the nature of Escrow Payments, Reserve Funds, late
payment charges, assumption fees, assumption application fees, earnout fees,
extension fees, modification fees, charges for beneficiary statements or demands
and amounts collected for checks returned for insufficient funds, need not be
deposited by the Master Servicer in the Certificate Account. The Master Servicer
shall promptly deliver to the Special Servicer any of the foregoing items
received by it, if and to the extent that such items constitute Additional
Special Servicing Compensation payable to the Special Servicer. If the Master
Servicer shall deposit into the Certificate Account any amount not required to
be deposited therein, it may at any time withdraw such amount from the
Certificate Account, any provision herein to the contrary notwithstanding.
Upon receipt of any of the amounts described in clauses (i) through
(iv) and (viii) above with respect to any Serviced Loan (for the avoidance of
doubt, not including any REO Serviced Loan), the Special Servicer shall
promptly, but in no event later than one Business Day after receipt of available
funds, remit such amounts to the Master Servicer for deposit into the
Certificate Account in accordance with the second preceding paragraph, unless
the Special Servicer determines, consistent with the Servicing Standard, that a
particular item should not be deposited because of a restrictive endorsement.
Any such amounts received by the Special Servicer with respect to an REO
Property (other than an REO Property related to a Serviced Whole Loan) shall be
deposited by the Special Servicer into the REO Account and remitted to the
Master Servicer for deposit into the Certificate Account pursuant to Section
3.16(c). With respect to any such amounts paid by check to the order of the
Special Servicer, the Special Servicer shall endorse such check to the order of
the Master Servicer unless the Special Servicer determines, consistent with the
Servicing Standard, that a particular item cannot be so endorsed and delivered
because of a restrictive endorsement.
(b) The Trustee shall establish and maintain one or more trust
accounts (collectively, the "Distribution Account") to be held in trust for the
benefit of the Trust as holder of the Torre Mayor Loan REMIC Regular Interest,
the Class A-SBFL Regular Interest and the REMIC I Regular Interests, and for the
Certificateholders. The Distribution Account shall be an Eligible Account. On or
prior to 1:00 p.m. New York City time on each Master Servicer Remittance Date,
the Master Servicer shall deliver to the Trustee, for deposit into the
Distribution Account, an aggregate amount of immediately available funds equal
to the Master Servicer Remittance Amount for such Master Servicer Remittance
Date. If, at 3:00 p.m., New York City time, on any Master Servicer Remittance
Date, the Trustee has not received the Master Servicer Remittance Amount, the
Trustee shall provide notice to the Master Servicer in the same manner as
required by Section 4.03(a) with respect to P&I Advances.
In the event that the Master Servicer fails to remit the Master
Servicer Remittance Amount for such Master Servicer Remittance Date on the
related Master Servicer Remittance Date, the Master Servicer shall pay to the
Trustee interest at the Reimbursement Rate on the Master Servicer Remittance
Amount for the period from and including such Master Servicer Remittance Date to
but excluding the date on which the Master Servicer Remittance Amount is
actually received by the Trustee.
In addition, the Master Servicer shall, as and when required
hereunder, deliver to the Trustee for deposit into the Distribution Account:
(i) any P&I Advances required to be made by the Master Servicer in
accordance with Section 4.03(a);
(ii) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.19(e) in connection with Prepayment Interest
Shortfalls; and
(iii) any Liquidation Proceeds paid by the Master Servicer or a
Majority Certificateholder of the Controlling Class in connection with the
purchase of all of the Mortgage Loans and any REO Properties pursuant to
Section 9.01, exclusive of the portion of such Liquidation Proceeds
required to be deposited into the Certificate Account pursuant to Section
9.01.
The Trustee shall, upon receipt, deposit into the Distribution
Account any and all amounts received or advanced by the Trustee that are
required by the terms of this Agreement to be deposited therein.
All such amounts deposited in respect of the Majority 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.
All such amounts deposited in respect of the Torre Mayor Pari Passu
Note A-2 Mortgage Loan shall be deemed to be deposited into the Torre Mayor Loan
REMIC Distribution Account and, on each Distribution Date, deemed to be
distributed to the REMIC I Distribution Account in respect of the Torre Mayor
Loan REMIC Regular Interest pursuant to Sections 4.01(k)(i), (ii) and (iii), and
distributed to the Class R-TM Certificates pursuant to Section 4.01(k)(iv).
(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 and Class R-TM 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 (other than the Class A-SBFL Certificates) and the
Class A-SBFL Regular Interest pursuant to Section 4.01(b)(i) and Section
4.01(c)(i) on such date.
(iii) The Trustee shall establish and maintain one or more trust
accounts (collectively, the "Torre Mayor Loan REMIC Distribution Account")
as a sub-account of the Distribution Account, in the name of the Trustee,
in trust for the benefit of the Trust as holder of the Torre Mayor Loan
REMIC Regular Interest, the Class A-SBFL Regular Interest and the REMIC I
Regular Interests and for the Certificateholders. The Torre Mayor Loan
REMIC Distribution Account shall at all times be an Eligible Account or a
sub-account of the Distribution Account.
(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. Notwithstanding the foregoing, any Excess Liquidation
Proceeds with respect to the Torre Mayor Pari Passu Note A-2 Mortgage Loan
shall be deemed to be distributed by the Torre Mayor Loan REMIC in respect
of the Class R-TM Certificates and then held in a portion of the Excess
Liquidation Proceeds Account that is beneficially owned by the Holders of
the Class R-TM Certificates and shall not be an asset of any REMIC for
federal income tax purposes. Such portion of the Excess Liquidation
Proceeds Account shall be an "outside reserve fund" for purposes of the
REMIC Provisions, and the Holders of the Class R-TM Certificates will
beneficially own any distribution from the Torre Mayor Loan REMIC or REMIC
I thereto or any reinvestment income thereon. Any withdrawal from the
Excess Liquidation Proceeds Account pursuant to Section 3.05(d) shall be
pro rata as between such portion of the Excess Liquidation Proceeds
Account and the remainder of such account. Upon termination of the Trust
Fund, any amounts remaining in the portion of the Excess Liquidation
Proceeds Account beneficially owned by the Holders of the Class R-TM
Certificates shall be distributed to such Holders.
(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.
(vi) On or before the Closing Date, the Trustee shall establish and
maintain the Class A-SBFL Floating Rate Account in trust for the benefit
of the Class A-SBFL Certificateholders and the Class A-SBFL Swap
Counterparty. The Class A-SBFL Floating Rate Account shall (i) at all
times be an Eligible Account and (ii) relate solely to the Class A-SBFL
Certificates and amounts payable in respect of the Class A-SBFL Swap
Contract. The Trustee shall deposit into the Class A-SBFL Floating Rate
Account all amounts received in respect of distributions on the Class
A-SBFL Regular Interest as specified in Section 3.05(h), and shall
immediately deposit into the Class A-SBFL Floating Rate Account all
amounts received under the Class A-SBFL Swap Contract.
(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
Torre Mayor Loan REMIC Distribution Account, the REMIC I Distribution Account,
the REMIC II Distribution Account, the Class A-SBFL Floating Rate 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 Torre Mayor Loan REMIC
Distribution Account, the REMIC I Distribution Account, the REMIC II
Distribution Account, the Class A-SBFL Floating Rate Account, the Excess
Interest Distribution Account and the Excess Liquidation Proceeds Account prior
to any change thereof. Funds in the Excess Interest Distribution Account, if
established, and the Excess Liquidation Proceeds Account, if established, shall
remain uninvested.
(e) The Master Servicer shall establish and maintain one or more
Serviced Whole Loan Custodial Accounts in which the Master Servicer shall
deposit or cause to be deposited within one Business Day of receipt (in the case
of payments by Mortgagors or other collections on or in respect of a Serviced
Whole Loan) or as otherwise required hereunder, the following payments and
collections received or made by or on behalf of it subsequent to the Cut-off
Date (other than in respect of principal, interest and any other amounts due and
payable on such Whole Loan on or before the Cut-off Date, which payments shall
be held as provided in the related Intercreditor Agreement):
(i) all payments, from whatever source, or transfers from a debt
service reserve account, on account of principal, including Principal
Prepayments, on such Serviced Whole Loan;
(ii) all payments, from whatever source, or transfers from a debt
service reserve account, on account of interest on such Whole Loan;
(iii) all Prepayment Premiums received in respect of such Whole
Loan;
(iv) all payments, Insurance Proceeds, Condemnation Proceeds and
Liquidation Proceeds received in respect of such Serviced Whole Loan,
together with any amounts representing recoveries of Workout-Delayed
Reimbursement Amounts or Nonrecoverable Advances in respect of the related
Serviced Whole Loan;
(v) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.06 in connection with losses incurred with respect
to Permitted Investments of funds held in such Serviced Whole Loan
Custodial Account;
(vi) any amounts required to be deposited by the Master Servicer or
the Special Servicer pursuant to Section 3.07(b) in connection with losses
with respect to such Serviced Whole Loan resulting from a deductible
clause in a blanket or master single insurance policy;
(vii) any amounts required to be transferred from the related REO
Account pursuant to Section 3.16(c);
(viii) any amounts representing payments made by Mortgagors that are
allocable to cover items in respect of which Servicing Advances have been
made; and
(ix) insofar as they do not constitute Escrow Payments, any amounts
paid by the related Mortgagor with respect to the related Serviced Whole
Loan specifically to cover items for which a Servicing Advance has been
made or that represent a recovery of property protection expenses from a
Mortgagor.
The foregoing requirements for deposit into the Serviced Whole Loan
Custodial Accounts shall be exclusive. Without limiting the generality of the
foregoing, actual payments from Mortgagors in the nature of Escrow Payments,
Reserve Funds, assumption fees, assumption application fees, earnout fees,
extension fees, modification fees, charges for beneficiary statements or demands
and amounts collected for checks returned for insufficient funds, need not be
deposited by the Master Servicer in the Serviced Whole Loan Custodial Accounts.
The Master Servicer shall promptly deliver to the Special Servicer any of the
foregoing items received by it, if and to the extent that such items constitute
Additional Special Servicing Compensation payable to the Special Servicer. If
the Master Servicer shall deposit into any Serviced Whole Loan Custodial Account
any amount not required to be deposited therein, it may at any time withdraw
such amount from such Serviced Whole Loan Custodial Account, any provision
herein to the contrary notwithstanding.
Notwithstanding the foregoing or any other provision to the contrary
in this Agreement, the Master Servicer may maintain the Certificate Account and
the respective Serviced Whole Loan Custodial Accounts as multiple separate
sub-accounts of a single Eligible Account; provided that: (i) all deposits into
and withdrawals from such single Eligible Account shall be made in the same
manner as would be the case if the Certificate Account and the respective
Serviced Whole Loan Custodial Accounts were maintained as multiple separate
accounts; (ii) all distributions on the Certificates will be calculated and made
in the same manner as would be the case if the Certificate Account and the
respective Serviced Whole Loan Custodial Accounts were maintained as multiple
separate accounts; (iii) the Master Servicer shall make credits and debits to
those multiple sub-accounts in a manner consistent with the provisions of this
Agreement governing deposits and withdrawals of funds to and from the
Certificate Account and the respective Serviced Whole Loan Custodial Accounts,
respectively; (iv) the Master Servicer's maintaining the Certificate Account and
the respective Serviced Whole Loan Custodial Accounts as multiple separate
sub-accounts of a single Eligible Account (as opposed to in the form of multiple
separate Eligible Accounts) shall not adversely affect any of the
Certificateholders or any Companion Loan Holder; and (v) such single Eligible
Account shall be entitled substantially as follows: "Bank of America, National
Association, as Master Servicer, in trust for the registered holders of Banc of
America Commercial Mortgage Inc. Commercial Mortgage Pass-Through Certificates,
Series 2006-1, and the respective Companion Loan Holder(s), as their interests
may appear, Certificate/Custodial Account".
Upon receipt of any of the amounts described in clauses (i) through
(iv) and (viii) above with respect to such Serviced Whole Loan (for the
avoidance of doubt, not including any REO Serviced Loan), the Special Servicer
shall promptly, but in no event later than one Business Day after receipt of
available funds, remit such amounts to the Master Servicer for deposit into the
applicable Serviced Whole Loan Custodial Account in accordance with the second
preceding paragraph, unless the Special Servicer determines, consistent with the
Servicing Standard, that a particular item should not be deposited because of a
restrictive endorsement. Any such amounts received by the Special Servicer with
respect to an REO Property (other than an REO Property that is not related to a
Serviced Whole Loan) shall be deposited by the Special Servicer into the related
REO Account and remitted to the Master Servicer for deposit into the related
Serviced Whole Loan Custodial Account pursuant to Section 3.16(c). With respect
to any such amounts paid by check to the order of the Special Servicer, the
Special Servicer shall endorse such check to the order of the Master Servicer
unless the Special Servicer determines, consistent with the Servicing Standard,
that a particular item cannot be so endorsed and delivered because of a
restrictive endorsement.
Funds in a Serviced Whole Loan Custodial Account may be invested
only in Permitted Investments in accordance with the provisions of Section 3.06.
The Master Servicer shall give notice to the Trustee, the Special Servicer, the
Depositor and the related Companion Loan Holder(s), of the location of each
Serviced Whole Loan Custodial Account as of the Closing Date and of the new
location of a Serviced Whole Loan Custodial Account prior to any change thereof.
(f) The Master Servicer shall establish and maintain the Interest
Reserve Account in trust for the benefit of the Certificateholders. The Master
Servicer is hereby authorized to make deposits in and withdrawals from the
Interest Reserve Account, in accordance with the terms of this Agreement. The
Interest Reserve Account shall be maintained as a segregated account separate
from other accounts.
(g) If any Loss of Value Payments are received in connection with a
Material Defect or Material Breach, as the case may be, pursuant to or as
contemplated by Section 2.03(j), 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 Serviced Whole Loan Custodial Accounts, the Class
A-SBFL Floating Rate Account and the Excess Liquidation Proceeds Account.
(a) The Master Servicer may, from time to time, make withdrawals
from the Certificate Account for any of the following purposes (the order set
forth below not constituting an order of priority for such withdrawals):
(i) to remit to the Trustee no later than 1:00 p.m. (New York time)
for deposit into the Distribution Account and the Excess Interest
Distribution Account, the Master Servicer Remittance Amount for, and, to
the extent permitted or required by Section 4.03(a), as applicable, any
P&I Advances to be made on, each Master Servicer Remittance Date;
(ii) to reimburse the Master Servicer or the Trustee, as applicable,
for xxxxxxxxxxxx X&X Advances made thereby (in each case, with its own
funds), the Master Servicer's and the Trustee's, as the case may be,
respective rights to reimbursement pursuant to this clause (ii) with
respect to any P&I Advance (other than Nonrecoverable P&I Advances, which
are reimbursable pursuant to clause (vii) below) being limited to amounts
that represent Late Collections of interest and principal received in
respect of the particular Mortgage Loan or REO Serviced Loan as to which
such P&I Advance was made (net of related Master Servicing Fees and/or
Workout Fees) (exclusive of each Mortgage Loan or REO Serviced Loan
included in a Serviced Whole Loan to the extent such payment was received
out of collections from the related Serviced Whole Loan Custodial
Account);
(iii) to pay to the Master Servicer earned and unpaid Master
Servicing Fees in respect of each Mortgage Loan and REO Serviced Loan
(exclusive of each Mortgage Loan or REO Serviced Loan included in a
Serviced Whole Loan to the extent such payment was received out of
collections from the related Serviced Whole Loan Custodial Account), the
Master Servicer's right to payment pursuant to this clause (iii) with
respect to any Mortgage Loan or REO Serviced Loan (exclusive of each
Mortgage Loan or REO Serviced Loan included in a Serviced Whole Loan to
the extent such payment was received out of collections from the related
Serviced Whole Loan Custodial Account) being payable from, and limited to,
amounts received on or in respect of such Mortgage Loan (whether in the
form of payments, Liquidation Proceeds, Condemnation Proceeds or Insurance
Proceeds) or such REO Serviced Loan (whether in the form of REO Revenues,
Liquidation Proceeds or Insurance Proceeds) that are allocable as a
recovery of interest thereon;
(iv) to pay to the Special Servicer, out of general collections on
the Mortgage Loans and any REO Properties, earned and unpaid Special
Servicing Fees in respect of each Specially Serviced Loan and REO Serviced
Loan (exclusive of each Companion Loan) and to pay to the KinderCare
Portfolio Special Servicer and/or the Torre Mayor Special Servicer, as
applicable, out of general collections on the Mortgage Loans and any REO
Properties, the Trust Fund's applicable share of any earned and unpaid
special servicing fees, liquidation fees and workout fees in respect of
the KinderCare Portfolio Pari Passu Note A-2 Mortgage Loan and/or the
Torre Mayor Pari Passu Note A-2 Mortgage Loan, as applicable;
(v) to pay to the Special Servicer earned and unpaid Workout Fees
and Liquidation Fees to which it is entitled pursuant to, and from the
sources contemplated by Section 3.11(c);
(vi) to reimburse itself, the Special Servicer or the Trustee, as
applicable, for any unreimbursed Servicing Advances made thereby (in each
case, with its own funds), the Master Servicer's, the Trustee's or the
Special Servicer's, as the case may be, respective rights to reimbursement
pursuant to this clause (vi) with respect to any Servicing Advance (other
than Nonrecoverable Servicing Advances, which are reimbursable pursuant to
clause (vii) below) being limited to (A) payments made by the related
Mortgagor that are allocable to cover the item in respect of which such
Servicing Advance was made, and (B) Insurance Proceeds, Condemnation
Proceeds, Liquidation Proceeds and, if applicable, REO Revenues received
in respect of the particular Mortgage Loan or REO Property (exclusive of
each Mortgage Loan or REO Serviced Loan included in a Serviced Whole Loan
or any REO Property securing a Whole Loan to the extent such payment was
received out of collections from the related Serviced Whole Loan Custodial
Account) as to which such Servicing Advance was made;
(vii) (A) 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 (exclusive of any Non-Serviced Mortgage
Loan), 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; (B) to reimburse the
KinderCare Portfolio Master Servicer, the KinderCare Portfolio Special
Servicer, the KinderCare Portfolio or the Trustee, as applicable, out of
general collections on the Mortgage Loans and any REO Properties, the
Trust Fund's pro rata share of any KinderCare Portfolio Nonrecoverable
Servicing Advance; and (C) to reimburse the Torre Mayor Master Servicer,
the Torre Mayor Special Servicer or the Torre Mayor Trustee, as
applicable, out of general collections on the Mortgage Loans and any REO
Properties, the Trust Fund's pro rata share of any Torre Mayor
Nonrecoverable Servicing Advance;
(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) (A) to the extent that, during any Collection Period, the
Master Servicer has reimbursed or is reimbursing itself, the Special
Servicer and the Trustee, as applicable, for any unreimbursed Advance
pursuant to clause (ii), (vi) or (vii) above or pursuant to Section 3.03,
and insofar as payment has not already been made, and the Default Charges
then on deposit in the Certificate Account is not sufficient to make such
payment pursuant to clause (viii) above, to pay the Master Servicer, the
Special Servicer or the Trustee, as the case may be, out of general
collections on the Mortgage Loans and any REO Properties (exclusive of
each Mortgage Loan or REO Serviced Loan included in a Serviced Whole Loan
or any REO Property securing a Whole Loan to the extent such payment was
received out of collections from the related Serviced Whole Loan Custodial
Account), any related Advance Interest accrued and payable on the portion
of such Advance so reimbursed or being reimbursed; (B) at such time as it
reimburses the KinderCare Portfolio Master Servicer, the KinderCare
Portfolio Special Servicer or the KinderCare Portfolio Trustee, as
applicable, for the Trust Fund's pro rata share of any KinderCare
Portfolio Nonrecoverable Servicing Advance, to pay to the KinderCare
Portfolio Master Servicer, the KinderCare Portfolio Special Servicer and
the KinderCare Portfolio Trustee, as applicable, out of general
collections on the Mortgage Loans and any REO Properties, interest accrued
and payable on the Trust Fund's pro rata share of such KinderCare
Portfolio Nonrecoverable Servicing Advance; and (C) at such time as it
reimburses the Torre Mayor Master Servicer, the Torre Mayor Special
Servicer or the Torre Mayor Trustee, as applicable, for the Trust Fund's
pro rata share of any Torre Mayor Nonrecoverable Servicing Advance, to pay
to the Torre Mayor Master Servicer, the Torre Mayor Special Servicer and
the Torre Mayor Trustee, as applicable, out of general collections on the
Mortgage Loans and any REO Properties, interest accrued and payable on the
Trust Fund's pro rata share of such Torre Mayor Nonrecoverable Servicing
Advance;
(x) to pay any outstanding expense, other than Advance Interest,
that was incurred with respect to any Mortgage Loan or related REO
Serviced Loan (exclusive of each Mortgage Loan or REO Serviced Loan
included in a Serviced Whole Loan) and that, if paid from a source other
than Default Charges collected on the Mortgage Pool, would constitute an
Additional Trust Fund Expense, such payment to be made out of Default
Charges collected on the Mortgage Pool, as and to the extent contemplated
by Section 3.27;
(xi) to pay itself any items of Additional Master Servicing
Compensation, and to pay to the Special Servicer any items of Additional
Special Servicing Compensation to which it is entitled, in each case from
funds on deposit in the Certificate Account from time to time;
(xii) to pay any unpaid Liquidation Expenses incurred with respect
to any Mortgage Loan or REO Property (exclusive of each Mortgage Loan or
REO Serviced Loan included in a Serviced Whole Loan or any REO Property
securing a Whole Loan to the extent such payment was received out of
collections from the related Serviced Whole Loan Custodial Account) such
payments to be made, first, out of payments, Insurance Proceeds,
Condemnation Proceeds or Liquidation Proceeds and, if applicable, REO
Revenues received in respect of such Mortgage Loan or REO Property, as the
case may be, and then, out of general collections on other Mortgage Loans
and REO Properties (exclusive of each Mortgage Loan or REO Serviced Loan
included in a Serviced Whole Loan or any REO Property securing a Whole
Loan to the extent such payment was received out of collections from the
related Serviced Whole Loan Custodial Account);
(xiii) to pay, in accordance with Section 3.11(i), out of general
collections on the Mortgage Loans and any REO Properties (exclusive of
each Mortgage Loan or REO Serviced Loan included in a Serviced Whole Loan
or any REO Property securing a Whole Loan to the extent such payment was
received out of collections from the related Serviced Whole Loan Custodial
Account), certain servicing expenses that would, if advanced, constitute
Nonrecoverable Servicing Advances;
(xiv) to pay, out of general collections on the Mortgage Loans and
any REO Properties (exclusive of each Mortgage Loan or REO Serviced Loan
included in a Serviced Whole Loan or any REO Property securing a Whole
Loan to the extent such payment was received out of collections from the
related Serviced Whole Loan Custodial Account), costs and expenses
incurred by the Trust Fund pursuant to Section 3.09(c) (other than the
costs of environmental testing, which are to be covered by, and
reimbursable as, a Servicing Advance);
(xv) to pay itself, the Special Servicer, the Depositor, the
Trustee, or any of their respective directors, officers, members,
managers, employees and agents, as the case may be, out of general
collections on the Mortgage Loans and any REO Properties any amounts
payable to any such Person pursuant to Section 6.03, Section 7.01(b) or
Section 8.05(b), as applicable;
(xvi) to pay, out of general collections on the Mortgage Loans and
REO Properties (exclusive of each Mortgage Loan or REO Serviced Loan
included in a Serviced Whole Loan or any REO Property securing a Whole
Loan to the extent such payment was received out of collections from the
related Serviced Whole Loan Custodial Account), for the cost of recording
this Agreement in accordance with Section 11.02(a);
(xvii) to pay, out of general collections on the Mortgage Loans and
any REO Properties (exclusive of each Mortgage Loan or REO Serviced Loan
included in a Serviced Whole Loan or any REO Property securing a Whole
Loan), 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) (A) 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 Serviced Whole Loan to the
extent such payment was received out of collections from the related
Serviced Whole Loan Custodial Account), it being acknowledged that this
clause (xviii) shall not be construed to modify any limitation otherwise
set forth in this Agreement on the time at which any Person is entitled to
payment or reimbursement of any amount or the funds from which any such
payment or reimbursement is permitted to be made, and (B) with respect to
any Non-Serviced Mortgage Loan, to reimburse the related Non-Serviced
Mortgage Loan Servicer, Non-Serviced Mortgage Loan Special Servicer or
Non-Serviced Mortgage Loan Trustee, as applicable for the pro rata portion
of any Additional Trust Fund Expenses (as such term is defined in the
related Non-Serviced Mortgage Loan Pooling Agreement) that relate
exclusively to the servicing of such Non-Serviced Whole Loan out of
general collections on the Mortgage Loans and the REO Properties;
(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 Serviced Whole Loan), if
any, previously purchased or otherwise removed from the Trust Fund by such
Person pursuant to or as contemplated by this Agreement, all amounts
received thereon subsequent to the date of purchase;
(xx) to transfer Excess Liquidation Proceeds (exclusive of Excess
Liquidation Proceeds received with respect to a Mortgage Loan included in
a Serviced 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) above, then the corresponding withdrawals from the Certificate
Account shall be made in the following priority and subject to the following
rules: (A) if the payment, reimbursement or remittance is to be made from a
specific source of funds, then such payment, reimbursement or remittance shall
be made from that specific source of funds on a pro rata basis with any and all
other payments, reimbursements and remittances to be made from such specific
source of funds; and (B) if the payment, reimbursement or remittance can be made
from any funds on deposit in the Certificate Account, then (following any
withdrawals made from the Certificate Account in accordance with the immediately
preceding clause (A) above) such payment, reimbursement or remittance shall be
made from such general funds remaining on a pro rata basis with any and all
other payments, reimbursements or remittances to be made from such general
funds; provided that any reimbursements of Advances in respect of any particular
Mortgage Loan or REO Property out of the Certificate Account pursuant to any of
clauses (ii), (vi) and (vii) above, and any payments of interest thereon out of
the Certificate Account pursuant to either of clauses (viii) and (ix) above,
shall be made (to the extent of their respective entitlements to such
reimbursements and/or payments): first, to the Trustee and second, pro rata, to
the Master Servicer and Special Servicer. Any amounts withdrawn from the
Certificate Account pursuant to clauses (ii) through (xviii) above that are
specific to the Torre Mayor Pari Passu Note A-2 Mortgage Loan shall be allocated
to the Torre Mayor Loan REMIC; any amount so withdrawn that is specific to a
Majority Mortgage Loan shall be allocated to REMIC I; and any amount so
withdrawn that is not specific to a particular Mortgage Loan shall be allocated
by the REMIC Administrator between REMIC I and the Torre Mayor Loan REMIC in
proportion to the Stated Principal Balances of their related Mortgage Loans.
The Master Servicer shall keep and maintain separate accounting
records, on a loan-by-loan basis (and on a property-by-property basis for REO
Serviced Loans) when appropriate, in connection with any withdrawal from the
Certificate Account pursuant to clauses (ii) through (xix) above sufficient to
determine the amounts attributable to the Torre Mayor Loan REMIC (with respect
to the Torre Mayor Pari Passu Note A-2 Mortgage Loan) and REMIC I (with respect
to the Majority Mortgage Loans) or, in the case of a withdrawal not related to a
specific Mortgage Loan, allocable pro rata based on relative aggregate Stated
Principal Balances.
The Master Servicer shall pay to the Special Servicer (or to third
party contractors at the direction of the Special Servicer) from the Certificate
Account amounts permitted to be paid to it (or to such third party contractors)
therefrom promptly upon receipt of a certificate of a Servicing Officer of the
Special Servicer describing the item and amount to which the Special Servicer
(or such third party contractors) is entitled. The Master Servicer may rely
conclusively on any such certificate and shall have no duty to recalculate the
amounts stated therein. The Special Servicer shall keep and maintain separate
accounting for each Specially Serviced Loan and REO Property, on a loan-by-loan
and property-by-property basis, for the purpose of justifying any request for
withdrawal from the Certificate Account.
Upon the determination that a previously made Advance is a
Nonrecoverable Advance, instead of obtaining reimbursement out of general
collections immediately, the Master Servicer, the Special Servicer or the
Trustee, as applicable, may, in its sole discretion, elect to obtain
reimbursement for such Nonrecoverable Advance over time and the unreimbursed
portion of such Advance will accrue interest at the Reimbursement Rate. If such
an election to obtain reimbursement over time is made, the Master Servicer, the
Special Servicer or the Trustee, as applicable, will, during the first six
months after such nonrecoverability determination was made, only seek
reimbursement for such Nonrecoverable Advance from collections of principal
(with such Nonrecoverable Advances being reimbursed before Workout-Delayed
Reimbursement Amounts). After such initial six months, the Master Servicer, the
Special Servicer or the Trustee, as applicable, may continue to seek
reimbursement for such Nonrecoverable Advance solely from collections of
principal or may seek reimbursement for such Nonrecoverable Advance from general
collections, in each case for a period of time not to exceed an additional six
months (with such Nonrecoverable Advances being reimbursed before
Workout-Delayed Reimbursement Amounts). In the event that the Master Servicer,
the Special Servicer or the Trustee, as applicable, wishes to seek reimbursement
over time after the second six-month period discussed in the preceding sentence,
then the Master Servicer, the Special Servicer or the Trustee, as applicable,
may continue to seek reimbursement for such Nonrecoverable Advance solely from
collections of principal or may seek reimbursement for such Nonrecoverable
Advance from general collections, in either case for such a longer period of
time as agreed to by the Master Servicer, the Special Servicer or the Trustee
(as applicable) and the Directing Certificateholder (with each such applicable
party having the right to agree or disagree in its sole discretion) (with such
Nonrecoverable Advances being reimbursed before Workout-Delayed Reimbursement
Amounts). Notwithstanding the foregoing, at any time after such a determination
to obtain reimbursement over time, the Master Servicer, the Special Servicer or
the Trustee, as applicable, may, in its sole discretion, decide to obtain
reimbursement immediately. The fact that a decision to recover such
Nonrecoverable Advances over time, or not to do so, benefits some Classes of
Certificateholders to the detriment of other Classes shall not, with respect to
the Master Servicer or the Special Servicer, constitute a violation of the
Servicing Standard and/or with respect to the Trustee, constitute a violation of
any fiduciary duty to Certificateholders or contractual duty hereunder. The
Master Servicer, the Special Servicer or the Trustee, as applicable, will give
each Rating Agency three weeks prior notice of its intent to obtain
reimbursement of Nonrecoverable Advances from interest collections as described
above unless (1) the Master Servicer or Special Servicer (or Trustee, if
applicable) determines in its sole discretion that waiting three weeks after
such a notice could jeopardize the Master Servicer's or the Special Servicer's
(or Trustee's, if applicable) ability to recover Nonrecoverable Advances, (2)
changed circumstances or new or different information becomes known to the
Master Servicer or Special Servicer (or Trustee, if applicable) that could
affect or cause a determination of whether any Advance is a Nonrecoverable
Advance, whether to defer reimbursement of a Nonrecoverable Advance or the
determination in clause (1) above, or (3) the Master Servicer or Special
Servicer has not timely received from the Trustee information requested by the
Master Servicer or Special Servicer to consider in determining whether to defer
reimbursement of a Nonrecoverable Advance; provided that, if clause (1), (2) or
(3) applies, the Master Servicer or Special Servicer (or Trustee, if applicable)
shall give each Rating Agency notice of an anticipated reimbursement to it of
Nonrecoverable Advances from amounts in the Certificate Account allocable to
interest on the Mortgage Loans as soon as reasonably practicable in such
circumstances. The Master Servicer or Special Servicer (or Trustee, if
applicable) shall have no liability for any loss, liability or expense resulting
from any notice provided to each Rating Agency contemplated by the immediately
preceding sentence.
If the Master Servicer, the Special Servicer or the Trustee, as
applicable, is reimbursed out of general collections for any unreimbursed
Advances that are determined to be Nonrecoverable Advances (together with any
interest accrued and payable thereon), then (for purposes of calculating
distributions on the Certificates) such reimbursement and payment of interest
shall be deemed to have been made: first, out of the Principal Distribution
Amount, that, but for its application to reimburse a Nonrecoverable Advance
and/or to pay interest thereon, would be included in the Available Distribution
Amount for any subsequent Distribution Date, and second, out of other amounts
that, but for their application to reimburse a Nonrecoverable Advance and/or to
pay interest thereon, would be included in the Available Distribution Amount for
any subsequent Distribution Date.
If and to the extent that any payment is deemed to be applied as
contemplated in the paragraph above to reimburse a Nonrecoverable Advance or to
pay interest thereon, then the Principal Distribution Amount for such
Distribution Date shall be reduced, to not less than zero, by the amount of such
reimbursement. If and to the extent (i) any Advance is determined to be a
Nonrecoverable Advance, (ii) such Advance and/or interest thereon is reimbursed
out of the Principal Distribution Amount as contemplated above and (iii) the
particular item for which such Advance was originally made is subsequently
collected out of payments or other collections in respect of the related
Mortgage Loan, then the Principal Distribution Amount for the Distribution Date
that corresponds to the Collection Period in which such item was recovered shall
be increased by an amount equal to the lesser of (A) the amount of such item and
(B) any previous reduction in the Principal Distribution Amount for a prior
Distribution Date as contemplated in the paragraph above resulting from the
reimbursement of the subject Advance and/or the payment of interest thereon.
To the extent a Nonrecoverable Advance with respect to a Mortgage
Loan is required to be reimbursed from the principal portion of the general
collections on the Mortgage Loans pursuant to this Section 3.05(a), such
reimbursement shall be made first, from the principal collections available on
the Mortgage Loans included in the same Loan Group as such Mortgage Loan and if
the principal collections in such Loan Group are not sufficient to make such
reimbursement in full, then from the principal collections available in the
other Loan Group (after giving effect to any reimbursement of Nonrecoverable
Advances related to such other Loan Group). To the extent the Principal
Distribution Amount for a Distribution Date is increased as set forth in
preceding paragraph, such increase shall be allocated first to the principal
collections in the Loan Group with respect to which the Mortgage Loan as to
which the related Nonrecoverable Advance was made does not belong, and then to
the Loan Group with respect to which the Mortgage Loan as to which the related
Nonrecoverable Advance was made does belong.
If one or more unreimbursed Workout-Delayed Reimbursement Amounts
exist, then such Workout-Delayed Reimbursement Amounts will be reimbursable only
from amounts in the Certificate Account that represent collections of principal
on the Mortgage Loans (net of any collections of principal applied to
reimbursement of Nonrecoverable Advances or interest thereon); provided,
however, that on any Distribution Date when (1) less than 10% of the initial
aggregate Stated Principal Balance of the Mortgage Pool is outstanding and (2)
the sum of the aggregate unpaid Nonrecoverable Advances plus the aggregate
unpaid Workout-Delayed Reimbursement Amounts that have not been reimbursed to
the Master Servicer, Special Servicer or Trustee, as applicable, exceeds 20% of
the aggregate Stated Principal Balance of the Mortgage Pool then outstanding,
then the Master Servicer, the Special Servicer or the Trustee, as applicable,
may obtain reimbursement of any outstanding Workout-Delayed Reimbursement Amount
from principal collections or any other amounts in the Certificate Account,
including but not limited to interest collected on the Mortgage Loans, if
principal is not sufficient to pay such amounts; provided, further, however,
that the foregoing shall not in any manner limit the right of the Master
Servicer, the Special Servicer or the Trustee, as applicable, to choose
voluntarily to seek reimbursement of Workout-Delayed Reimbursement Amounts
solely from collections of principal. The Master Servicer, the Special Servicer
or the Trustee, as applicable, will give each Rating Agency three weeks prior
notice of its intent to obtain reimbursement of Workout-Delayed Reimbursement
Amounts from interest collections as described in the preceding sentence.
If the Master Servicer, the Special Servicer or the Trustee, as
applicable, is reimbursed out of general collections for any Workout-Delayed
Reimbursement Amounts, then (for purposes of calculating distributions on the
Certificates) such reimbursement and payment of interest shall be deemed to have
been made: first, out of the Principal Distribution Amount, that, but for its
application to reimburse a Workout-Delayed Reimbursement Amount, would be
included in the Available Distribution Amount for any subsequent Distribution
Date, and second, out of other amounts that, but for their application to
reimburse a Workout-Delayed Reimbursement Amount, would be included in the
Available Distribution Amount for any subsequent Distribution Date.
If and to the extent that any payment is deemed to be applied as
contemplated in the paragraph above to reimburse a Workout-Delayed Reimbursement
Amount, then the Principal Distribution Amount for such Distribution Date shall
be reduced, to not less than zero, by the amount of such reimbursement. If and
to the extent (i) such Workout-Delayed Reimbursement Amount is reimbursed out of
the Principal Distribution Amount as contemplated above and (ii) the particular
item for which such Workout-Delayed Reimbursement Amount was originally made is
subsequently collected out of payments or other collections in respect of the
related Mortgage Loan, then the Principal Distribution Amount for the
Distribution Date that corresponds to the Collection Period in which such item
was recovered shall be increased by an amount equal to the lesser of (A) the
amount of such item and (B) any previous reduction in the Principal Distribution
Amount for a prior Distribution Date as contemplated in the paragraph above
resulting from the reimbursement of the subject Workout-Delayed Reimbursement
Amount.
To the extent a Workout-Delayed Reimbursement Amount with respect to
a Mortgage Loan is required to be reimbursed from the principal portion of the
general collections on the Mortgage Loans pursuant to clause (vii) of this
Section 3.05(a), such reimbursement shall be made first, from the principal
collections available on the Mortgage Loans included in the same Loan Group as
such Mortgage Loan and, if the principal collections in such Loan Group are not
sufficient to make such reimbursement in full, then from the principal
collections available in the other Loan Group (after giving effect to any
reimbursement of Nonrecoverable Advances related to such other Loan Group). To
the extent the Principal Distribution Amount for a Distribution Date is
increased as set forth in preceding paragraph, such increase shall be allocated
first to the principal collections in the Loan Group with respect to which the
Mortgage Loan as to which the related Workout-Delayed Reimbursement Amount was
reimbursed does not belong, and then to the Loan Group with respect to which the
Mortgage Loan as to which the related Workout-Delayed Reimbursement Amount was
reimbursed does belong.
For the avoidance of doubt, notwithstanding anything contained in
this Agreement to the contrary, the right of any Person hereunder to recover
amounts owing with respect to a Whole Loan from the Certificate Account and/or
the related Serviced Whole Loan Custodial Account shall be without duplication.
(b) The Trustee may, from time to time, make withdrawals from the
Torre Mayor Loan REMIC Distribution Account and 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 Torre Mayor Loan REMIC
Distribution Account to the REMIC I Distribution Account amounts
distributable in respect of the Torre Mayor Loan REMIC Regular Interest
and to make distributions to the Class R-TM Certificates and the Class R-I
Certificates pursuant to Sections 4.01(k) or 9.01, as applicable, and as
contemplated by Section 3.04(c)(iii); and to be deemed to transfer from
the REMIC I Distribution Account to the REMIC II Distribution Account on
or before the related Distribution Date the Available Distribution Amount
as provided in Section 4.01(a)(ii) and Prepayment Premiums to be
distributed in respect of the REMIC I Regular Interests, as contemplated
by Section 4.01(c)(i);
(ii) to pay the Trustee accrued and unpaid Trustee Fees pursuant to
Section 8.05(a) and to reimburse the Trustee for any other amounts to
which it is entitled to be reimbursed from the Distribution Account
pursuant to this Agreement;
(iii) to pay the Trustee or any of its respective directors,
officers, employees and agents, as the case may be, any amounts payable or
reimbursable to any such Person pursuant to Section 8.05(b);
(iv) as contemplated by Section 12.01(h), to pay for the reasonable
costs of the Opinions of Counsel sought by the Trustee as contemplated by
Section 12.01(a) or 12.01(d) in connection with any amendment to this
Agreement requested by the Trustee, provided such amendment is in
furtherance of the rights and interests of Certificateholders;
(v) to pay for the reasonable costs of the Opinions of Counsel
sought by the Trustee as contemplated by Section 12.02(a);
(vi) to (A) pay any and all federal, state and local taxes imposed
on the Torre Mayor Loan REMIC, 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);
(vii) to be deemed to transfer any Excess Liquidation Proceeds with
respect to the Torre Mayor Pari Passu Note A-2 Mortgage Loan to the
related portion of the Excess Liquidation Proceeds Account pursuant to
Section 3.04(c)(iv); and
(viii) to clear and terminate the Torre Mayor Loan REMIC
Distribution Account and the REMIC I Distribution Account at the
termination of this Agreement pursuant to Section 9.01.
Taxes imposed on the Torre Mayor Loan REMIC, REMIC I or REMIC II
shall be allocated to the related REMIC, and amounts withdrawn from the
Distribution Account pursuant to clauses (ii) through (v) above shall be
allocated by the REMIC Administrator between REMIC I and the Torre Mayor Loan
REMIC in proportion to the Stated Principal Balances of their related Mortgage
Loans.
(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 A-SBFL
Certificates, the Class V Certificates, the Class R-I Certificates or the Class
R-TM Certificates) on each Distribution Date pursuant to Section 4.01(b),
Section 4.01(c)(i) or Section 9.01, as applicable, and to make distributions to
the Class A-SBFL Floating Rate Account with respect to the Class A-SBFL Regular
Interest pursuant to this Agreement; 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 (pro rata as between such amount
attributable to the Torre Mayor Pari Passu Note A-2 Mortgage Loan and any
Majority Mortgage Loans) and deposit into the Distribution Account, for
distribution on such Distribution Date, an amount equal to the lesser of (i) the
entire amount, if any, then on deposit in the Excess Liquidation Proceeds
Account and (ii) the excess, if any, of the aggregate amount distributable on
such Distribution Date pursuant to Section 4.01(a) and Section 4.01(b), over the
Available Distribution Amount for such Distribution Date (calculated without
regard to such transfer from the Excess Liquidation Proceeds Account to the
Distribution Account); provided that on the Business Day prior to the Final
Distribution Date, the Trustee shall withdraw from the Excess Liquidation
Proceeds Account and deposit into the Distribution Account, for distribution on
such Distribution Date, any and all amounts then on deposit in the Excess
Liquidation Proceeds Account.
(e) The Trustee, the Depositor, the Master Servicer and the Special
Servicer shall in all cases have a right prior to the Certificateholders to any
particular funds on deposit in the Certificate Account and the Distribution
Account from time to time for the reimbursement or payment of compensation,
Advances (with interest thereon at the Reimbursement Rate) and their respective
expenses hereunder, but only if and to the extent such compensation, Advances
(with interest) and expenses are to be reimbursed or paid from such particular
funds on deposit in the Certificate Account or the Distribution Account pursuant
to the express terms of this Agreement.
(f) The Master Servicer may (and, with respect to clause (i),
shall), from time to time, make withdrawals from each Serviced Whole Loan
Custodial Account, for any of the following purposes (the order set forth below
not constituting an order of priority for such withdrawals):
(i) to make remittances each month no later than the Master Servicer
Remittance Date, in an aggregate amount of immediately available funds
equal to the applicable portion of the Serviced Whole Loan Remittance
Amount, to the related Companion Loan Holder(s) and to the Certificate
Account for the benefit of the Trust (as holder of the related Mortgage
Loan or any related REO Serviced Loan), in accordance with Section 1 of
the Desert Passage 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 any Serviced
Companion Loan by the related seller thereof shall be remitted solely to
the holder of such Serviced Companion Loan, and Liquidation Proceeds
relating to the repurchase of a Mortgage Loan related to a Serviced 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 Serviced 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 included in a Serviced Whole Loan shall be
deposited into the Serviced Whole Loan Custodial Account and applied
solely to pay expenses relating to that Companion Loan and to pay amounts
due to the related Companion Noteholder;
(ii) to reimburse the Master Servicer or the Trustee, as applicable,
for xxxxxxxxxxxx X&X Advances made with respect to such Whole Loan or, in
the case of the Trustee, with respect to the related Mortgage Loan (in
each case, with its own funds), and to reimburse the related Serviced
Companion Loan Service Provider for unreimbursed principal and/or interest
advances with respect to the applicable Serviced Companion Loan, the
Master Servicer's, the Trustee's and the related Serviced Companion Loan
Service Provider's, as the case may be, respective rights to reimbursement
pursuant to this clause (ii) with respect to any P&I Advance (other than
Nonrecoverable P&I Advances, which are reimbursable pursuant to clause
(vii) below) 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 Serviced Whole Loan and related REO
Serviced Loan, the Master Servicer's right to payment pursuant to this
clause (iii) with respect to any Serviced Whole Loan or REO Serviced Loan
being payable from, and limited to, amounts received on or in respect of
such Whole Loan (whether in the form of payments, Liquidation Proceeds,
Condemnation Proceeds or Insurance Proceeds) or such REO Serviced Loan
(whether in the form of REO Revenues, Liquidation Proceeds or Insurance
Proceeds) that are allocable as a recovery of interest thereon;
(iv) to pay to the Special Servicer, out of general collections on
such Serviced Whole Loan and related REO Properties, earned and unpaid
Special Servicing Fees in respect of such Serviced Whole Loan and related
REO Properties;
(v) to pay to the Special Servicer earned and unpaid Workout Fees
and Liquidation Fees to which it is entitled pursuant to, and from the
sources contemplated by, Section 3.11(c);
(vi) to reimburse itself, the Special Servicer or the Trustee, as
applicable, for any unreimbursed Servicing Advances with respect to such
Serviced Whole Loan or related REO Property made thereby (in each case,
with its own funds), the Master Servicer's, the Special Servicer's and the
Trustee's, as the case may be, respective rights to reimbursement pursuant
to this clause (vi) with respect to any Servicing Advance (other than
Nonrecoverable Servicing Advances, which are reimbursable pursuant to
clause (vii) below) being limited to (A) payments made by the related
Mortgagor that are allocable to cover the item in respect of which such
Servicing Advance was made, and (B) Insurance Proceeds, Condemnation
Proceeds, Liquidation Proceeds and, if applicable, REO Revenues received
in respect of such Serviced Whole Loan or REO Property as to which such
Servicing Advance was made;
(vii) to reimburse the Master Servicer, the Special Servicer or the
Trustee, as applicable, out of general collections on such Serviced Whole
Loan or REO Property, for any unreimbursed related Advances made thereby
that have been determined to be Nonrecoverable Advances;
(viii) to pay the Trustee, the Master Servicer, or the Special
Servicer as applicable, any Advance Interest due and owing thereto out of
Default Charges collected on such Serviced Whole Loan and to pay the
Serviced Companion Loan Service Provider, if any, 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) above or pursuant to Section 3.03, and insofar
as payment has not already been made, and the Default Charges then on
deposit in such Serviced Whole Loan Custodial Account is not sufficient to
make such payment pursuant to clause (viii) above, to pay the Master
Servicer, the Special Servicer or the Trustee, as the case may be, out of
general collections on such Serviced Whole Loan and related REO Property,
any related Advance Interest accrued and payable on the portion of such
Advance so reimbursed or being reimbursed;
(x) to pay any outstanding expense, other than Advance Interest,
that was incurred with respect to such Serviced Whole Loan and that, if
paid from a source other than Default Charges collected on such Serviced
Whole Loan, would constitute an Additional Trust Fund Expense, such
payment to be made out of Default Charges collected on such Serviced Whole
Loan, as and to the extent contemplated by Section 3.27;
(xi) to pay itself any items of Additional Master Servicing
Compensation, and to pay to the Special Servicer any items of Additional
Special Servicing Compensation to which it is entitled, in each case with
respect to such Serviced Whole Loan from funds collected on such Serviced
Whole Loan that are on deposit in such Serviced Whole Loan Custodial
Account from time to time;
(xii) to pay any unpaid Liquidation Expenses incurred with respect
to such Serviced Whole Loan or REO Property, such payments to be made,
first, out of payments, Insurance Proceeds, Condemnation Proceeds or
Liquidation Proceeds and, if applicable, REO Revenues received in respect
of such Serviced Whole Loan or REO Property, as the case may be, and then,
out of general collections on such Serviced Whole Loan or REO Property;
(xiii) to pay, in accordance with Section 3.11(i), out of general
collections on such Serviced Whole Loan and REO Property, certain
servicing expenses with respect to such Serviced Whole Loan that would, if
advanced, constitute Nonrecoverable Servicing Advances;
(xiv) to pay, out of general collections on such Serviced 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 Serviced Whole Loan or REO Property, any amounts payable to any such
Person pursuant to Section 6.03, Section 7.01(b) or Section 8.05(b), as
applicable, with respect to such Serviced Whole Loan;
(xvi) [Reserved];
(xvii) to pay, out of general collections on such Serviced Whole
Loan and REO Property, any reasonable out-of-pocket cost or expense
(including the reasonable fees of tax accountants and attorneys) incurred
by the Trustee pursuant to Section 3.17(b) in connection with providing
advice to the Special Servicer with respect to such Serviced Whole Loan;
(xviii) to pay to the Master Servicer, the Special Servicer, the
Trustee or the Depositor, as the case may be, to the extent that such
amount is related to the Mortgage Loan included in such Serviced Whole
Loan, any amount specifically required to be paid to such Person at the
expense of the Trust Fund under any provision of this Agreement to which
reference is not made in any other clause of this Section 3.05(f), it
being acknowledged that this clause (xviii) shall not be construed to
modify any limitation otherwise set forth in this Agreement on the time at
which any Person is entitled to payment or reimbursement of any amount or
the funds from which any such payment or reimbursement is permitted to be
made;
(xix) to pay the Master Servicer, the Special Servicer, the 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 Serviced Whole Loan, if any, previously purchased or
otherwise removed from the Trust Fund by such Person pursuant to or as
contemplated by this Agreement or (ii) with respect to a Serviced
Companion 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 Serviced Whole Loan to the Excess Liquidation
Proceeds Account in accordance with Section 3.04(e);
(xxi) to withdraw any amounts deposited into such Serviced Whole
Loan Custodial Account in error; and
(xxii) to clear and terminate such Serviced Whole Loan Custodial
Account at the termination of this Agreement pursuant to Section 9.01.
If amounts on deposit in such Serviced Whole Loan Custodial Account
at any particular time (after withdrawing any portion of such amounts deposited
into such Serviced Whole Loan Custodial Account in error) are insufficient to
satisfy all payments, reimbursements and remittances to be made therefrom as set
forth in clauses (ii) through (xx) above, then the corresponding withdrawals
from such Serviced Whole Loan Custodial Account shall be made in the following
priority and subject to the following rules: (A) if the payment, reimbursement
or remittance is to be made from a specific source of funds, then such payment,
reimbursement or remittance shall be made from that specific source of funds on
a pro rata basis with any and all other payments, reimbursements and remittances
to be made from such specific source of funds; and (B) if the payment,
reimbursement or remittance can be made from any funds on deposit in such
Serviced Whole Loan Custodial Account, then (following any withdrawals made from
such Serviced Whole Loan Custodial Account in accordance with the immediately
preceding clause (A) above) such payment, reimbursement or remittance shall be
made from such general funds remaining on a pro rata basis with any and all
other payments, reimbursements or remittances to be made from such general
funds; provided that any reimbursements of Advances in respect of such Whole
Loan or REO Property out of such Serviced Whole Loan Custodial Account pursuant
to any of clauses (ii), (vi) and (vii) above, and any payments of interest
thereon out of such Serviced Whole Loan Custodial Account pursuant to either of
clauses (viii) and (ix) above, shall be made (to the extent of their respective
entitlements to such reimbursements and/or payments): first, to the Trustee; and
second, pro rata, to the Master Servicer and Special Servicer.
Notwithstanding anything to the contrary in this Section 3.05(f),
the Master Servicer acknowledges its obligations under the Desert Passage
Intercreditor Agreement to remit funds thereunder then due and owing to the
Desert Passage Pari Passu Note A-2 Holder and the Desert Passage Pari Passu Note
A-3 Holder in the time frames set forth therein.
The Master Servicer and the Special Servicer, as applicable, shall
notify the Trustee in writing of any transfer of a Companion 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.
With respect to any Serviced Whole Loan, if amounts required to pay
the expenses allocable to any related Serviced Companion Loan exceed amounts on
deposit in the related Serviced Whole Loan Custodial Account and the Master
Servicer, the Special Servicer or the Trustee, as applicable, shall have sought
reimbursement from the Trust Fund with respect to such expenses allocable to
such Serviced Companion Loan, as applicable, the Master Servicer shall seek (on
behalf of the Trust Fund, subject to the related Intercreditor Agreement)
payment or reimbursement first from the holder of the related subordinate
Serviced Companion Loan, if any (such payment or reimbursement being limited to
proceeds and collections allocable to such subordinate Serviced Companion Loan),
and then for the pro rata portion of such expenses allocable to the Serviced
Pari Passu Companion Loan from the related Serviced Companion Loan Holder or, if
such Serviced Pari Passu Companion Loan has been deposited into a
securitization, out of general collections in the collection account established
pursuant to the related Serviced Companion Loan Securitization Agreement.
(g) If any Loss of Value Payments are deposited into the Loss of
Value Reserve Fund with respect to any Loan or any related REO Property, then
the Special Servicer shall, promptly when needed, transfer such Loss of Value
Payments (up to the remaining portion thereof) from the Loss of Value Reserve
Fund to the Master Servicer for deposit into the Certificate Account for the
following purposes:
(i) to reimburse the Master Servicer, the Special Servicer or the
Trustee, in accordance with Section 3.05(a), for any Nonrecoverable
Advance made by such party with respect to such Loan or any related REO
Property (together with interest thereon);
(ii) to pay, in accordance with Section 3.05(a), or to reimburse the
Trust for the prior payment of, any expense relating to such Loan or any
related REO Property that constitutes or, if not paid out of such Loss of
Value Payments, would constitute an Additional Trust Fund Expense;
(iii) to offset any Realized Loss (as calculated without regard to
the application of such Loss of Value Payments) incurred with respect to
such Loan or any successor REO Serviced Loan with respect thereto;
(iv) following the occurrence of a liquidation event or other
disposition with respect to such Mortgage Loan or any related REO
Property, to cover the items contemplated by the immediately preceding
clauses (i) through (iii) in respect of any other Loan or REO Serviced
Loan; and
(v) on the final Distribution Date after all distributions have been
made as set forth in clauses (i) through (iv) above, to the 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)).
Any Loss of Value Payments transferred to the Certificate Account
pursuant to clauses (i) through (iii) of the prior paragraph shall, except for
purposes of Section 3.11(c), be deemed to constitute Liquidation Proceeds
received by the Trust in respect of the related Loan or any successor REO
Serviced Loan with respect thereto for which such Loss of Value Payments were
received; and any Loss of Value Payments transferred to the Certificate Account
pursuant to clause (iv) of the prior paragraph shall, except for purposes of
Section 3.11(c), be deemed to constitute Liquidation Proceeds received by the
Trust in respect of the Loan or REO Serviced Loan for which such Loss of Value
Payments are being transferred to the Certificate Account to cover an item
contemplated by clauses (i) through (iii) of the prior paragraph.
On the Business Day immediately prior to the Master Servicer
Remittance Date related to the final Distribution Date, the Special Servicer
shall withdraw from the Loss of Value Reserve Fund and transfer to the Master
Servicer, for deposit in the Certificate Account, any Loss of Value Payments
remaining on deposit in the Loss of Value Reserve Fund. Such Loss of Value
Payments so deposited in the Certificate Account shall constitute part of the
Available Distribution Amount for the final Distribution Date, to the extent
needed to distribute to the Holders of the REMIC II Regular Certificates (other
than the Class A-SBFL Certificates) and the Class A-SBFL Regular Interest 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 (other than the Class A-SBFL Certificates) and the Class
A-SBFL Regular Interest, and otherwise shall be distributable to the Holders of
the Residual Certificates on the final Distribution Date.
(h) The Trustee shall make withdrawals from the Class A-SBFL
Floating Rate Account in the following order of priority and only for the
following purposes: (i) to withdraw amounts deposited in the Class A-SBFL
Floating Rate Account in error and pay such amounts to Persons entitled thereto;
(ii) out of interest amounts to make regularly scheduled payments of interest
required to be paid to the Class A-SBFL Swap Counterparty under the Class A-SBFL
Swap Contract as specified in Section 3.32(c), provided there is no Class A-SBFL
Swap Default; (iii) to make distributions to the Holders of the Class A-SBFL
Certificates pursuant to Section 4.01(l); and (iv) to clear and terminate the
Class A-SBFL Floating Rate Account pursuant to Section 9.01.
Section 3.06 Investment of Funds in the Certificate Account, the
Interest Reserve Account, the Excess Interest Distribution Account, the Torre
Mayor Loan REMIC Distribution Account, the REMIC I Distribution Account, the
REMIC II Distribution Account, the Excess Liquidation Proceeds Account, the
Class A-SBFL Floating Rate Account and the REO Account.
(a) The Master Servicer may direct any depository institution
maintaining the Certificate Account, the Servicing Account, the Interest Reserve
Account and each Serviced Whole Loan Custodial Account, the Special Servicer may
direct any depository institution maintaining each REO Account, and the Trustee
may direct any depository institution maintaining the Torre Mayor Loan REMIC
Distribution Account, the REMIC I Distribution Account, the REMIC II
Distribution Account, the Excess Interest Distribution Account, the Class A-SBFL
Floating Rate 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 (or in the case of
the Class A-SBFL Floating Rate Account, maturing no later than the Business Day
immediately preceding the next succeeding date on which such funds are required
to be withdrawn therefrom and paid to the Class A-SBFL Swap Counterparty). 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(s) (in its capacity as such). The Master Servicer (with respect to
Permitted Investments of amounts in the Certificate Account, the Interest
Reserve Account, each Serviced Whole Loan Custodial Account and the Servicing
Account) and the Special Servicer (with respect to Permitted Investments of
amounts in each REO Account), on behalf of the Trustee for the benefit of the
Certificateholders and in the case of any Investment Account solely related to a
Whole Loan, the related Companion Loan Holder(s), and the Trustee (with respect
to the Excess Liquidation Proceeds Account, the Torre Mayor Loan REMIC
Distribution Account, the REMIC I Distribution Account, the REMIC II
Distribution Account, the Class A-SBFL Floating Rate Account and the Excess
Interest Distribution Account), on behalf of the Certificateholders, shall (and
the Trustee hereby designates the Master Servicer, the Special Servicer or
itself, as applicable, as the Person that shall) (i) be the "entitlement holder"
of any Permitted Investment that is a "security entitlement" and (ii) maintain
"control" of any Permitted Investment that is either a "certificated security"
or an "uncertificated security". For purposes of this Section 3.06(a), the terms
"entitlement holder", "security entitlement", "control", "certificated security"
and "uncertificated security" shall have the meanings given such terms in
Revised Article 8 (1994 Revision) of the UCC, and "control" of any Permitted
Investment by the Master Servicer or the Special Servicer shall constitute
"control" by a Person designated by, and acting on behalf of, the Trustee for
purposes of Revised Article 8 (1994 Revision) of the UCC. If amounts on deposit
in an Investment Account are at any time invested in a Permitted Investment
payable on demand, the Master Servicer (in the case of the Certificate Account,
the Interest Reserve Account, each Serviced Whole Loan Custodial Account and the
Servicing Account) or the Special Servicer (in the case of each REO Account) and
the Trustee (in the case of the Torre Mayor Loan REMIC Distribution Account, the
Excess Interest Distribution Account, the Excess Liquidation Proceeds Account,
the Class A-SBFL Floating Rate Account, the REMIC I Distribution Account and the
REMIC II Distribution Account) shall:
(i) consistent with any notice required to be given thereunder,
demand that payment thereon be made on the last day such Permitted
Investment may otherwise mature hereunder in an amount equal to the lesser
of (1) all amounts then payable thereunder and (2) the amount required to
be withdrawn on such date; and
(ii) demand payment of all amounts due thereunder promptly upon
determination by the Master Servicer, the Special Servicer or the Trustee,
as the case may be, that such Permitted Investment would not constitute a
Permitted Investment in respect of funds thereafter on deposit in the
Investment Account.
(b) Whether or not the Master Servicer directs the investment of
funds in the Certificate Account, the Interest Reserve Account, each Serviced
Whole Loan Custodial Account and the Servicing Account, interest and investment
income realized on funds deposited therein, to the extent of the Net Investment
Earnings, if any, for each such Investment Account for each Collection Period,
shall be for the sole and exclusive benefit of the Master Servicer and shall be
subject to its withdrawal in accordance with Section 3.05(a) or Section 3.05(f),
as applicable. Whether or not the Special Servicer directs the investment of
funds in each REO Account, interest and investment income realized on funds
deposited therein, to the extent of the Net Investment Earnings, if any, for
such Investment Account for each Collection Period, shall be for the sole and
exclusive benefit of the Special Servicer and shall be subject to its withdrawal
in accordance with Section 3.16(b). Whether or not the Trustee directs the
investment of funds in the Interest Reserve Account, the Torre Mayor Loan REMIC
Distribution Account, the Excess Interest Distribution Account, the Excess
Liquidation Proceeds Account, the Class A-SBFL Floating Rate Account, the Torre
Mayor Loan REMIC Distribution Account, the REMIC I Distribution Account and the
REMIC II Distribution Account, interest and investment income realized on funds
deposited therein, to the extent of Net Investment Earnings, if any, for each
such Investment Account for each Collection Period, shall be for the sole and
exclusive benefit of the Trustee and shall be subject to withdrawal by the
Trustee. If any loss shall be incurred in respect of any Permitted Investment on
deposit in any Investment Account, the Master Servicer (in the case of the
Certificate Account, the Interest Reserve Account, each Serviced Whole Loan
Custodial Account and the Servicing Account (with respect to funds invested by
the Master Servicer for its own account)), the Special Servicer (in the case of
each REO Account) and the Trustee (in the case of the Interest Reserve Account,
the Excess Interest Distribution Account, the Excess Liquidation Proceeds
Account, the Class A-SBFL Floating Rate Account, the Torre Mayor Loan REMIC
Distribution 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
Class A-SBFL Floating Rate Account, the Torre Mayor Loan REMIC Distribution
Account, the REMIC I Distribution Account and the REMIC II Distribution Account;
and to the extent that it is the obligor on any such Permitted Investment.
(c) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of a payment due under any Permitted Investment, or
if a default occurs in any other performance required under any Permitted
Investment and the Master Servicer or the Special Servicer, as applicable, has
not taken such action, the Trustee may and, subject to Section 8.02, upon the
request of Holders of Certificates entitled to not less than 25% of the Voting
Rights allocated to any Class, shall take such action as may be appropriate to
enforce such payment or performance, including, without limitation, the
institution and prosecution of appropriate proceedings.
(d) Notwithstanding the investment of funds held in any Investment
Account, for purposes of the calculations hereunder, including, without
limitation, the calculation of the Available Distribution Amount and the Master
Servicer Remittance Amount, the amounts so invested (but not any interest earned
thereon) shall be deemed to remain on deposit in such Investment Account.
Section 3.07 Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage.
(a) In the case of each Serviced Loan, the Master Servicer shall use
reasonable efforts consistent with the Servicing Standard to cause each
Mortgagor to maintain, and, if the Mortgagor does not so maintain, the Master
Servicer will itself cause to be maintained, for each Mortgaged Property
(including each Mortgaged Property relating to any Specially Serviced Loan) all
insurance coverage as is required, subject to applicable law, under the related
loan documents; provided that, if and to the extent that any such loan documents
permit the holder thereof any discretion (by way of consent, approval or
otherwise) as to the insurance coverage that the related Mortgagor is required
to maintain, the Master Servicer shall exercise such discretion in a manner
consistent with the Servicing Standard and, prior to the date such existing
insurance expires or is required to be renewed, the Master Servicer may, to the
extent consistent with the Servicing Standard, take into account insurance in
place at loan origination, with a view towards requiring insurance comparable to
that required under other Serviced Loans with express provisions governing such
matters and including business interruption or rental loss insurance for at
least 12 months; and provided, further, that the Master Servicer shall be
required to maintain such insurance coverage upon the related Mortgagor's
failure to do so only to the extent that such insurance is available at
commercially reasonable rates and the Trustee, on behalf of the Trust, as
mortgagee has an insurable interest. Subject to Section 3.17(b), the Special
Servicer shall also cause to be maintained for each REO Property (other than
with respect to any REO Property related to a Non-Serviced Mortgage Loan) 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
Serviced Whole Loan the related Companion Loan Holder(s)) as the insured, with
loss payable to the Special Servicer on behalf of the Trustee (and in the case
of a Serviced Whole Loan the related Companion Loan Holder(s)) (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
Serviced Whole Loan is involved, the related Serviced Whole Loan Custodial
Account, subject to withdrawal pursuant to Section 3.05(a), or Section 3.05(f),
as applicable in the case of amounts received in respect of a Serviced Loan, or
in the applicable REO Account, subject to withdrawal pursuant to Section
3.16(c), in the case of amounts received in respect of an REO Property. Any cost
incurred by the Master Servicer or Special Servicer in maintaining any such
insurance shall not, for purposes hereof, including calculating monthly
distributions to Certificateholders, be added to unpaid principal balance or
Stated Principal Balance of the related Serviced Loan, notwithstanding that the
terms of such Serviced Loan so permit; provided, however, that this sentence
shall not limit the rights of the Master Servicer or Special Servicer on behalf
of the Trust or, if a Serviced Whole Loan is involved, on behalf of the related
Companion Loan Holder(s), to enforce any obligations of the related Mortgagor
under such Serviced Loan. Costs to the Master Servicer or Special Servicer of
maintaining insurance policies pursuant to this Section 3.07 shall be paid by
and reimbursable to the Master Servicer or the Special Servicer, as the case may
be, as a Servicing Advance.
If the related loan documents specifically and expressly set forth
terms requiring insurance coverage against terrorist or similar acts for a
Serviced Loan, then the Master Servicer and the Special Servicer shall enforce
the terms of the related loan documents in accordance with the Servicing
Standard, and if the Mortgagor fails to maintain such insurance, such failure
shall constitute a Servicing Transfer Event. To the extent the loan documents do
not set forth specific terms requiring insurance coverage against terrorist or
similar acts and a Serviced Loan (x) requires a Mortgagor to maintain insurance
policies covering some or all of the risks contained in the Additional
Exclusions or (y) in accordance with the Servicing Standard, the Master Servicer
has determined that the loan documents permit the lender to require the
Mortgagor to maintain insurance policies covering some or all the risks
contained in the Additional Exclusions (the covered risks required to be covered
or that the lender has the discretion to require to be covered being referred to
as "Covered Risks"), the Master Servicer shall use reasonable efforts in
accordance with the Servicing Standard to determine whether, upon renewal of the
Mortgagor's property or casualty insurance (including any all risk insurance
policy), any of the Covered Risks are excluded from coverage. If any of the
Covered Risks are determined by the Master Servicer to be excluded from
coverage, the Master Servicer shall request the Mortgagor to either (i) purchase
insurance acceptable to the Master Servicer in accordance with the Servicing
Standard and in accordance with the related loan documents covering such Covered
Risks or (ii) provide a written explanation as to its reasons for failing to
purchase such insurance. Notwithstanding the foregoing, with the written consent
of the Special Servicer in accordance with the Servicing Standard the Master
Servicer may waive the requirement to procure insurance covering any of the
Covered Risks if the Master Servicer determines in accordance with the Servicing
Standard that (1) insurance covering any such Covered Risks is not available at
a commercially reasonable price, or (2) based on information reasonably
available to the Master Servicer, after due inquiry, any such Covered Risks are
at that time not commonly insured against for properties similar to the
Mortgaged Property and located in or around the region in which the Mortgaged
Property is located unless the Stated Principal Balance of the Serviced Loan is
greater than $20,000,000. If the Stated Principal Balance of the Serviced Loan
is greater than $20,000,000, then the Master Servicer must determine that the
circumstances in both clauses (1) and (2) of the immediately preceding sentence
apply prior to waiving the Mortgagor's requirement to procure insurance with
respect to any Covered Risks. If the Special Servicer fails to give a response
to the Master Servicer as referenced in the second preceding sentence within ten
Business Days of the Master Servicer initially notifying the Special Servicer in
writing of such request, the Master Servicer shall promptly notify the Directing
Certificateholder of such failure of the Special Servicer to respond to such
request. If the Directing Certificateholder and/or the Special Servicer have not
responded to the Master Servicer within ten Business Days of the notice
referenced in the immediately preceding sentence, the Master Servicer shall
determine in accordance with the Servicing Standard whether to require (or not
require) the Mortgagor to maintain such insurance; provided, that during the
period that the Special Servicer and/or the Directing Certificateholder are
evaluating such insurance, none of the Master Servicer, the Special Servicer
and/or the Directing Certificateholder shall be liable for any loss related to
its failure to require a Mortgagor to maintain terrorism insurance and shall not
be in default of its obligations hereunder as a result of such failure. If the
Master Servicer requires the Mortgagor to maintain such insurance and the
Mortgagor fails to maintain such insurance, to the extent such insurance is then
reasonably available, the Master Servicer shall then procure such insurance in
accordance with the Servicing Standard and such failure by the Mortgagor shall
constitute a Servicing Transfer Event. For purposes of computing whether the
$20,000,000 threshold described herein is met for a particular Serviced Loan, if
a Serviced Loan is secured by multiple Mortgaged Properties, then the amount
subject to the $20,000,000 threshold shall be the portion of the Stated
Principal Balance of the related Serviced Loan pro rated based on an individual
Mortgaged Property's appraised value as a percentage of the total appraised
value of all of the related Mortgaged Properties.
(b) If the Master Servicer or the Special Servicer shall obtain and
maintain, or cause to be obtained and maintained, a blanket policy or master
force placed policy insuring against hazard losses on all of the Serviced Loans
or REO Properties, as applicable, that it is required to service and administer
hereunder, then, to the extent such policy (i) is obtained from a Qualified
Insurer having a financial strength or claims-paying rating no lower than "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 Serviced Loan (or, in the
absence of any such deductible limitation, the deductible limitation for an
individual policy that is consistent with the Servicing Standard). The Master
Servicer or the Special Servicer, as appropriate, shall prepare and present, on
behalf of itself, the Trustee and the Certificateholders and, in the case of a
Serviced Whole Loan, the related Companion Loan Holder(s), 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 Serviced Loan that contains a provision in the nature
of a (i) "due-on-sale" clause (which includes, without limitation, sales or
transfers of the Mortgaged Property (in full or in part) or the sale, transfer,
pledge or hypothecation of direct or indirect interest in the related Borrower
or its owners), which by its terms (1) provides that such Serviced Loan shall
(or may at the mortgagee's option) become due and payable upon the sale or other
transfer of an interest in the related Mortgaged Property or of a controlling
interest in the related Mortgagor; (2) provides that such Serviced Loan may not
be assumed without the consent of the mortgagee or satisfaction of certain
conditions in connection with any such sale or other transfer, for so long as
such Serviced Loan is included in the Trust Fund or (3) provides that such
Serviced Loan may be assumed or transferred without the consent of the mortgagee
provided that certain conditions set forth in the related loan documents are
satisfied, or (ii) as to each Serviced Loan that contains a provision in the
nature of a "due-on-encumbrance" clause (including, without limitation, any
mezzanine financing of the related Borrower or the related Mortgaged Property or
any sale or transfer of preferred equity in such Borrower or its direct or
indirect owners), that by its terms: (1) provides that such Serviced Loan shall
(or may at the mortgagee's option) become due and payable upon the creation of
any additional lien or other encumbrance on the related Mortgaged Property; (2)
requires the consent of the mortgagee or satisfaction of certain conditions to
the creation of any such additional lien or other encumbrance on the related
Mortgaged Property; or (3) provides that such Serviced Loan may be further
encumbered provided that certain conditions set forth in the loan documents have
been satisfied, each of the Master Servicer and the Special Servicer shall, on
behalf of the Trustee as the mortgagee of record, as to those Serviced Loans it
is obligated to service hereunder, exercise (or waive its right to exercise) any
right it may have with respect to such Serviced Loan (x) to accelerate the
payments thereon, (y) to withhold its consent to any such sale or other
transfer, in a manner consistent with the Servicing Standard or (z) determine
whether the conditions set forth in clauses (a)(i)(3) above have been satisfied.
Notwithstanding anything to the contrary contained herein, neither
the Master Servicer nor the Special Servicer shall waive any right it has, or
grant any consent it is otherwise entitled to withhold, under any related
"due-on-sale" or "due-on-encumbrance" clause (including, but not limited to,
making any determination that the conditions set forth in clauses (a)(i)(3) and
(a)(ii)(3) have been satisfied), unless both the Master Servicer and the Special
Servicer shall have followed the procedures set forth for those Serviced Loans
in the manner set forth in the immediately below clauses (i) through (vi):
(i) The Master Servicer shall not waive any right it has, or grant
any consent that it may otherwise withhold under any related "due-on-sale"
or "due-on-encumbrance" clause (including, but not limited to, making any
determination that the conditions set forth in clauses (a)(i)(3) and
(a)(ii)(3) have been satisfied) without first obtaining the consent of the
Special Servicer. The Special Servicer's consent shall be deemed given if
the Master Servicer shall have provided the Special Servicer written
notice of the matter together with all of the information set forth in the
immediately succeeding sentence and all information reasonably requested
by the Special Servicer and the Special Servicer shall not have responded
in writing, via fax or e mail within 15 Business Days of such request
(subject to any extensions of applicable time periods required if the
Special Servicer is required by this Agreement to seek the consent of
other third parties). In connection with the request set forth above, the
Master Servicer shall provide to the Special Servicer written notice of
the matter, a written explanation of the surrounding circumstances, such
additional information as the Special Servicer shall reasonably request
and a request for approval by the Special Servicer.
(ii) The Special Servicer shall not waive any right it has, or grant
any consent that it may otherwise withhold under any related "due-on-sale"
or "due-on-encumbrance" clause without obtaining the consent of the
Directing Certificateholder for (a) any Non-Partitioned Loan that is a
Performing Serviced Loan or (b) for any Specially Serviced Loan that is a
Non-Partitioned Loan. Consent by the Directing Certificateholder shall be
deemed given if the Special Servicer shall have provided the Directing
Certificateholder written notice of the matter together with all of the
information set forth in the immediately succeeding sentence and the
Directing Certificateholder shall not have responded in writing, via fax
or e mail within ten Business Days of such request. In connection with the
request set forth above, the Special Servicer shall provide to the
Directing Certificateholder written notice of the matter, a written
explanation of the surrounding circumstances, such additional information
as the Directing Certificateholder shall reasonably request and a request
for approval by the Directing Certificateholder.
(iii) With respect to any Serviced Whole Loan, (A) the Master
Servicer with respect to those time periods when such Loan is a Performing
Serviced Loan shall not waive any right that it may have, or grant any
consent that it may otherwise withhold under any related "due-on-sale" or
"due-on-encumbrance" clause without obtaining the consent of the Special
Servicer, which consent shall not be given without the Special Servicer
first obtaining the consent of the related Controlling Holder, and (B) the
Special Servicer with respect to those time periods when either such Loan
is a Specially Serviced Loan shall not waive any right that it may have,
or grant any consent that it may otherwise withhold under any related
"due-on-sale" or "due-on-encumbrance" clause without obtaining the consent
of the related Controlling Holder. Consent by a Controlling Holder shall
be deemed given if the Master Servicer or Special Servicer, as applicable,
shall have provided such Controlling Holder written notice of the matter
together with all of the information set forth in the last sentence of the
first paragraph of clause (ii) above and such Controlling Holder shall not
have responded in writing, via fax or email within ten Business Days of
such request.
(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 with an outstanding principal balance of
greater than $5,000,000 (other than with respect to any Non-Serviced
Mortgage Loan, which is governed by the related Non-Serviced Mortgage Loan
Pooling Agreement):
(1) represents greater than 5% of the then outstanding
principal balance of the Mortgage Pool;
(2) has an outstanding principal balance of greater than
$20,000,000; or
(3) is one of the ten largest Mortgage Loans in the
Trust Fund based on outstanding principal balance,
then neither the Master Servicer nor Special Servicer shall waive any right it
has, or grant any consent it is otherwise entitled to withhold, under any
related "due-on-sale" clause until it has received written confirmation from
each Rating Agency that such action would not result in the qualification (if
applicable), downgrade or withdrawal of the rating then assigned by such Rating
Agency to any Class of Certificates and, if a Serviced Whole Loan is involved,
to any Class of Serviced Companion Loan Securities.
(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 Group unless the Master Servicer or
Special Servicer, as applicable, shall have obtained written confirmation from
each Rating Agency that such action shall not result in a qualification (if
applicable), downgrade or withdrawal of the rating then assigned by such Rating
Agency to any Class of Certificates and, if a Serviced Whole Loan is involved,
to any Class of Serviced Companion Loan Securities.
(vii) In the event that the Master Servicer or Special Servicer
intends or is required, in accordance with the preceding clauses, by the
loan documents or applicable law, to permit the transfer of any Mortgaged
Property, the Master Servicer or the Special Servicer, as the case may be,
may, if consistent with the Servicing Standard, enter into a substitution
of liability agreement, pursuant to which the original Mortgagor and any
original guarantors are released from liability, and the transferee and
any new guarantors are substituted therefor and become liable under the
Mortgage Note and any related guaranties and, in connection therewith, may
require from the related Mortgagor a reasonable and customary fee for the
additional services performed by it, together with reimbursement for any
related costs and expenses incurred by it. In addition, the Master
Servicer or the Special Servicer, as the case may be, if consistent with
the Servicing Standard, shall require as a condition of its approval that
the related Mortgagor pay all costs associated with such transfer. The
Master Servicer or the Special Servicer, as the case may be, shall
promptly notify the Trustee in writing of any such agreement and forward
the original thereof to the Trustee for inclusion in the related Mortgage
File.
(b) In connection with any permitted assumption of any Serviced Loan
or waiver of a "due-on-sale" or "due-on-encumbrance" clause thereunder, the
Master Servicer (in the case of a Performing Serviced Loan) or the Special
Servicer (in the case of a Specially Serviced Loan) shall prepare all documents
necessary and appropriate for such purposes and shall coordinate with the
related Mortgagor for the due execution and delivery of such documents.
(c) If the Master Servicer or the Special Servicer collects an
assumption fee or an assumption application fee in connection with any transfer
or proposed transfer of any interest in a Mortgagor or a Mortgaged Property,
then the Master Servicer or the Special Servicer, as applicable, will apply that
fee to cover the costs and expenses associated with that transfer or proposed
transfer that are not otherwise paid by the related Mortgagor and that would
otherwise be payable or reimbursable out of the Trust Fund, including any Rating
Agency fees and expenses. Any remaining portion of such assumption fee (such
remaining portion, a "Net Assumption Fee") or of such assumption application fee
(such remaining portion, a "Net Assumption Application Fee") will be applied as
additional compensation to the Master Servicer or the Special Servicer in
accordance with Section 3.11.
Section 3.09 Realization Upon Defaulted Serviced Loans.
(a) The Special Servicer shall, subject to Sections 3.09(b),
3.09(c), and 3.09(d), exercise reasonable efforts, consistent with the Servicing
Standard, to foreclose upon or otherwise comparably convert the ownership of
properties and other collateral securing such of the Serviced Loans as come into
and continue in default and as to which no satisfactory arrangements can be made
for collection of delinquent payments, including pursuant to Section 3.20;
provided that neither the Master Servicer nor the Special Servicer shall, with
respect to any ARD Loan after its Anticipated Repayment Date, take any
enforcement action with respect to the payment of Excess Interest (other than
the making of requests for its collection) unless (i) the taking of an
enforcement action with respect to the payment of other amounts due under such
Serviced Loan is, in the good faith and reasonable judgment of the Special
Servicer, and without regard to such Excess Interest, also necessary,
appropriate and consistent with the Servicing Standard, or (ii) all other
amounts due under such Serviced Loan have been paid, the payment of such Excess
Interest has not been forgiven in accordance with Section 3.20 and, in the good
faith and reasonable judgment of the Special Servicer, the Liquidation Proceeds
expected to be recovered in connection with such enforcement action will cover
the anticipated costs of such enforcement action and, if applicable, any
associated Advance Interest. In connection with the foregoing, in the event of a
default under any Serviced Loan or Cross-Collateralized Group that is secured by
real properties located in multiple states, and such states include California
or another state with a statute, rule or regulation comparable to California's
"one action rule", then the Special Servicer shall consult Independent counsel
regarding the order and manner in which the Special Servicer should foreclose
upon or comparably proceed against such properties. The reasonable costs of such
consultation shall be paid by, and reimbursable to, the Master Servicer as a
Servicing Advance. In addition, all other costs and expenses incurred in any
foreclosure sale or similar proceeding shall be paid by, and reimbursable to,
the Special Servicer as a Servicing Advance. Nothing contained in this Section
3.09 shall be construed so as to require the Special Servicer, on behalf of the
Trust, to make a bid on any Mortgaged Property at a foreclosure sale or similar
proceeding that is in excess of the fair market value of such property, as
determined by such Special Servicer taking into account the factors described in
Section 3.18 and the results of any Appraisal obtained pursuant to the following
sentence or otherwise, all such cash bids to be made in a manner consistent with
the Servicing Standard. If and when the Special Servicer deems it necessary in
accordance with the Servicing Standard for purposes of establishing the fair
market value of any Mortgaged Property securing a Defaulted Serviced Loan,
whether for purposes of bidding at foreclosure or otherwise, the Special
Servicer is authorized to have an Appraisal completed with respect to such
property (the cost of which appraisal shall be covered by, and be reimbursable
as, a Servicing Advance).
(b) Notwithstanding any other provision of this Agreement, no
Mortgaged Property shall be acquired by the Special Servicer on behalf of the
Trust (and in the case of a Mortgaged Property securing a Serviced Whole Loan,
on behalf of the related Companion Loan Holder(s)) 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 the Torre Mayor Loan
REMIC, REMIC I or any REMIC that holds a Companion Loan at any given time
constitutes not more than a de minimis amount of the assets of such REMIC within
the meaning of Treasury Regulations Sections 1.860D-1(b)(3)(i) and (ii)), or
(ii) except as permitted by Section 3.17(a), subject the Trust (and in the case
of a Mortgaged Property securing a Serviced Whole Loan, the related Companion
Loan Holder(s)) to the imposition of any federal income or prohibited
transaction taxes under the Code. Subject to the foregoing, however, a Mortgaged
Property may be acquired through a single member limited liability company. In
addition, except as permitted under Section 3.17, the Special Servicer shall not
acquire any personal property on behalf of the Trust pursuant to this Section
3.09 (with the exception of cash or cash equivalents pledged as collateral for a
Serviced Loan) unless either:
(i) such personal property is incident to real property (within the
meaning of Section 856(e)(1) of the Code) so acquired by the Special
Servicer; or
(ii) the Special Servicer shall have obtained an Opinion of Counsel
(the cost of which shall be covered by, and reimbursable as, a Servicing
Advance) to the effect that the holding of such personal property as part
of the Trust Fund will not cause any of REMIC I, REMIC II or any REMIC
that holds a Companion Loan 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 Serviced Whole Loan,
on behalf of the related Companion Loan Holder(s)), 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 Serviced Whole Loan, on behalf of the related
Companion Loan Holder(s)), could, in the reasonable, good faith judgment of the
Special Servicer, exercised in accordance with the Servicing Standard, be
considered to hold title to, to be a "mortgagee-in-possession" of, or to be an
"owner" or "operator" of such Mortgaged Property within the meaning of CERCLA or
any comparable law, unless:
(i) the Special Servicer has previously determined in accordance
with the Servicing Standard, based on a Phase I Environmental Assessment
(and any additional environmental testing that the Special Servicer deems
necessary and prudent) of such Mortgaged Property conducted by an
Independent Person who regularly conducts Phase I Environmental
Assessments and performed during the 12-month period preceding any such
acquisition of title or other action, that the Mortgaged Property is in
compliance with applicable environmental laws and regulations and there
are no circumstances or conditions present at the Mortgaged Property
relating to the use, management or disposal of Hazardous Materials for
which investigation, testing, monitoring, containment, clean-up or
remediation could be required under any applicable environmental laws and
regulations; or
(ii) in the event that the determination described in clause (c)(i)
above cannot be made, the Special Servicer has previously determined in
accordance with the Servicing Standard, on the same basis as described in
clause (c)(i) above, that it would maximize the recovery to the
Certificateholders, or if a Serviced Whole Loan is affected, to the
Certificateholders and the related Companion Loan Holder(s) (as a
collective whole taking into account the subordination of any Subordinate
Interest(s)), on a net present value basis (the relevant discounting of
anticipated collections that will be distributable to Certificateholders
to be performed at the related Net Mortgage Rate) to acquire title to or
possession of the Mortgaged Property and to take such remedial, corrective
and/or other further actions as are necessary to bring the Mortgaged
Property into compliance with applicable environmental laws and
regulations and to appropriately address any of the circumstances and
conditions referred to in clause (c)(i) above.
Any such determination by the Special Servicer contemplated by
clause (i) or clause (ii) of the preceding paragraph shall be evidenced by an
Officer's Certificate to such effect delivered to the Trustee, the Master
Servicer, the Directing Certificateholder and the related Companion Loan
Holder(s) (if a Serviced Whole Loan is involved), specifying all of the bases
for such determination, such Officer's Certificate to be accompanied by all
related environmental reports. The cost of such Phase I Environmental Assessment
and any such additional environmental testing shall be advanced by the Master
Servicer at the direction of the Special Servicer given in accordance with the
Servicing Standard; provided, however, that the Master Servicer shall not be
obligated in connection therewith to advance any funds that, if so advanced,
would constitute a Nonrecoverable Servicing Advance. Amounts so advanced shall
be subject to reimbursement as Servicing Advances in accordance with Section
3.05(a). The cost of any remedial, corrective or other further action
contemplated by clause (ii) of the preceding paragraph shall be payable out of
the Certificate Account or, if a Serviced Whole Loan is involved, out of the
related Serviced Whole Loan Custodial Account, pursuant to Section 3.05.
(d) If neither of the conditions set forth in clauses (i) and (ii)
of the first paragraph of Section 3.09(c) has been satisfied with respect to any
Mortgaged Property securing a Defaulted Serviced Loan, the Special Servicer
shall take such action as is in accordance with the Servicing Standard (other
than proceeding against the Mortgaged Property) and, at such time as it deems
appropriate, may, on behalf of the Trust, and, if a Serviced Whole Loan is
involved, the related Companion Loan Holder(s) (as a collective whole taking
into account the subordination of any related Subordinate Interest(s)), 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(s) (if a Serviced Whole Loan is
involved), and the Directing Certificateholder monthly in writing as to any
actions taken by the Special Servicer with respect to any Mortgaged Property as
to which neither of the conditions set forth in clauses (i) and (ii) of the
first paragraph of Section 3.09(c) has been satisfied, in each case until the
earliest to occur of satisfaction of either of such conditions, release of the
lien of the related Mortgage on such Mortgaged Property and the related Loan's
becoming a Corrected Serviced Loan.
(f) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standard, the advisability of seeking to obtain a
deficiency judgment if the state in which the Mortgaged Property is located and
the terms of the subject Serviced Loan permit such an action and shall, in
accordance with the Servicing Standard, seek such deficiency judgment if it
deems advisable.
(g) Annually in each January, commencing in January 2007, the Master
Servicer (with information provided by the Special Servicer) shall file with the
IRS, on a timely basis, the information returns with respect to the reports of
foreclosures and abandonments and reports relating to any cancellation of
indebtedness income with respect to any Specially Serviced Loans and REO
Properties (other than REO Properties related to any Non-Serviced Mortgage Loan)
required by Sections 6050H (as applicable), 6050J and 6050P of the Code.
Contemporaneously, the Master Servicer shall deliver to the Trustee an Officer's
Certificate stating that all such information returns relating to Specially
Serviced Loans and REO Properties that were required to be filed during the
prior 12 months have been properly completed and timely provided to the IRS. The
Master Servicer shall prepare and file the information returns with respect to
the receipt of any mortgage interest received in a trade or business from
individuals with respect to any Serviced Loan as required by Section 6050H of
the Code. All information returns shall be in form and substance sufficient to
meet the reporting requirements imposed by the relevant sections of the Code.
(h) As soon as the Special Servicer makes a Final Recovery
Determination with respect to any Serviced Loan or REO Property (other than any
REO Property related to any Non-Serviced Mortgage Loan), it shall promptly
notify the Trustee, the Master Servicer, the Directing Certificateholder and the
related Companion Loan Holder(s) (if a Serviced Whole Loan is involved). The
Special Servicer shall maintain accurate records, prepared by a Servicing
Officer, of each such Final Recovery Determination (if any) and the basis
thereof. Each such Final Recovery Determination (if any) shall be evidenced by
an Officer's Certificate delivered to the Trustee and the Master Servicer no
later than the third Business Day following such Final Recovery Determination.
Section 3.10 Trustee to Cooperate; Release of Mortgage Files.
(a) Upon the payment in full of any Serviced Loan, or the receipt by
the Master Servicer of a notification that payment in full shall be escrowed in
a manner customary for such purposes, the Master Servicer shall immediately
notify the Trustee and the related Companion Loan Holder(s) (if a Serviced Whole
Loan is involved), and request delivery of the related Mortgage File by
delivering thereto a Request for Release in the form of Exhibit D that shall be
accompanied by the form of any release or discharge to be executed by the
Trustee. Any such Request for Release shall include a statement to the effect
that all amounts received or to be received in connection with such payment that
are required to be deposited into the Certificate Account pursuant to Section
3.04(a) have been or will be so deposited. Upon receipt of such notice and
request conforming in all material respects to the provisions hereof, the
Trustee shall promptly release, or cause any related Custodian to release, the
related Mortgage File to the Master Servicer or Special Servicer, as applicable.
If the Mortgage has been recorded in the name of MERS or its designee, the
Master Servicer shall take all necessary action to reflect the release of the
Mortgage on the records of MERS. No expenses incurred in connection with any
instrument of satisfaction or deed of reconveyance shall be chargeable to the
Certificate Account or if a Serviced Whole Loan is involved, the related
Serviced Whole Loan Custodial Account.
(b) If from time to time, and as appropriate for servicing or
foreclosure of any Serviced Loan, the Master Servicer or the Special Servicer
shall otherwise require any Mortgage File (or any portion thereof), then, upon
request of the Master Servicer or the Special Servicer and receipt therefrom of
a Request for Release in the form of Exhibit D attached hereto signed by a
Servicing Officer thereof, the Trustee shall release, or cause any related
Custodian to release, such Mortgage File (or portion thereof) to the Master
Servicer or the Special Servicer, as the case may be. Upon return of such
Mortgage File (or portion thereof) to the Trustee or the related Custodian, or
the delivery to the Trustee of a certificate of a Servicing Officer of the
Special Servicer stating that such Serviced Loan was liquidated and that all
amounts received or to be received in connection with such liquidation that are
required to be deposited into the Certificate Account pursuant to Section
3.04(a) or, if a Serviced Whole Loan is involved, into the related Serviced
Whole Loan Custodial Account pursuant to Section 3.04(e), have been or will be
so deposited, or that such Serviced Loan has become an REO Property, the Request
for Release shall be released by the Trustee to the Master Servicer or the
Special Servicer, as applicable.
(c) Within five Business Days of the Special Servicer's request
therefor (or, if the Special Servicer notifies the Trustee of an exigency,
within such shorter period as is reasonable under the circumstances), the
Trustee shall execute and deliver to the Special Servicer, in the form supplied
to the Trustee, as applicable, by the Special Servicer, any court pleadings,
requests for trustee's sale or other documents reasonably necessary to the
foreclosure or trustee's sale in respect of a Mortgaged Property or to any legal
action brought to obtain judgment against any Mortgagor on the Mortgage Note or
Mortgage or to obtain a deficiency judgment, or to enforce any other remedies or
rights provided by the Mortgage Note or Mortgage or otherwise available at law
or in equity or to defend any legal action or counterclaim filed against the
Trust, or if a Serviced Whole Loan is involved, against the related Companion
Loan Holder(s), 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 Serviced 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
applicable, the Companion Loan Holder(s), 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. If from time to time, pursuant to the terms of the KinderCare
Portfolio Intercreditor Agreement and the KinderCare Portfolio Pooling
Agreement, and as appropriate for enforcing the terms of the KinderCare
Portfolio Pari Passu Note A-2 Mortgage Loan, the KinderCare Portfolio Master
Servicer requests delivery to it of the original Mortgage Note for the
KinderCare Portfolio Pari Passu Note A-2 Mortgage Loan, then the Trustee shall
release or cause the release of such original Mortgage Note to the KinderCare
Portfolio Master Servicer or its designee. If from time to time, pursuant to the
terms of the Torre Mayor Intercreditor Agreements and the Torre Mayor Pooling
Agreement, and as appropriate for enforcing the terms of the Torre Mayor Pari
Passu Note A-2 Mortgage Loan, the Torre Mayor Master Servicer requests delivery
to it of the original Mortgage Note for the Torre Mayor Pari Passu Note A-2
Mortgage Loan, then the Trustee shall release or cause the release of such
original Mortgage Note to the Torre Mayor Master Servicer or its designee.
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 Serviced
Loan. As to each such Loan and REO Serviced Loan, for each calendar month
(commencing with March 2006) or any applicable portion thereof, the Master
Servicing Fee shall accrue at the related Master Servicing Fee Rate on the same
principal amount, and without giving effect to any Excess Interest that may
accrue on any ARD Loan after its Anticipated Repayment Date, as interest accrues
from time to time during such calendar month (or portion thereof) on such Loan
or is deemed to accrue from time to time during such calendar month (or portion
thereof) on such REO Serviced Loan, as the case may be, and shall be calculated
on the same Interest Accrual Basis as is applicable for such Loan or REO
Serviced Loan, as the case may be. The Master Servicing Fee with respect to any
Loan or REO Serviced Loan shall cease to accrue if a Liquidation Event (or with
respect to a Non-Serviced Mortgage Loan, a similar event occurs under the
related Non-Serviced Mortgage Loan Pooling Agreement) occurs in respect thereof.
Master Servicing Fees earned with respect to any such Loan or REO Serviced Loan
shall be payable monthly from payments of interest on such Loan or REO Revenues
allocable as interest on such REO Serviced Loan, as the case may be. The Master
Servicer shall be entitled to recover unpaid Master Servicing Fees in respect of
any Loan or REO Serviced Loan out of the portion of any related Insurance
Proceeds, Condemnation Proceeds or Liquidation Proceeds allocable as interest on
such Loan or REO Serviced Loan, as the case may be. The right to receive the
Master Servicing Fee may not be transferred in whole or in part except in
connection with the transfer of all of the Master Servicer's responsibilities
and obligations under this Agreement and except as otherwise expressly provided
in the following paragraph.
In the case of the Torre Mayor Pari Passu Note A-2 Mortgage Loan,
the Master Servicing Fee with respect to the Torre Mayor Pari Passu Note A-2
Mortgage Loan and additional servicing compensation with respect to the Torre
Mayor Pari Passu Note A-2 Mortgage Loan shall be an expense of the Torre Mayor
Loan REMIC.
(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 any
Companion Loan Holder under any Intercreditor Agreement (the following items,
collectively, "Additional Master Servicing Compensation"):
(i) any and all Net Default Charges, Net Assumption Application
Fees, Net Modification Application Fees and earnout fees collected with
respect to a Performing Serviced Loan;
(ii) 50% of any and all Net Assumption Fees actually paid by a
Mortgagor with respect to a Performing Serviced Loan;
(iii) 50% of any and all Net Modification Fees, extension fees,
consent fees and waiver fees actually paid by a Mortgagor with respect to
a Performing Serviced Loan for which Special Servicer approval is
required;
(iv) any and all charges for beneficiary statements or demands,
amounts collected for checks returned for insufficient funds and other
loan processing fees actually paid by a Mortgagor with respect to a
Performing Serviced Loan and, in the case of checks returned for
insufficient funds, with respect to a Specially Serviced Loan;
(v) any and all Prepayment Interest Excess collected on the Mortgage
Loans (other than any Non-Serviced Mortgage Loan);
(vi) interest or other income earned on deposits in the Investment
Accounts maintained by the Master Servicer, in accordance with Section
3.06(b) (but only to the extent of the Net Investment Earnings, if any,
with respect to any such Investment Account for each Collection Period
and, further, in the case of a Servicing Account or Reserve Account, only
to the extent such interest or other income is not required to be paid to
any Mortgagor under applicable law or under the related Mortgage); and
(vii) 50% of any and all substitution fees (net of any costs
incurred in connection with any substitution) collected on the Serviced
Loans.
Notwithstanding the foregoing with respect to any 50% sharing of
fees referenced in this Section 3.11(b), the Master Servicer shall be entitled
to all such fees if with respect to the activity related to any such fee the
Master Servicer is not required to seek the consent and/or approval of the
Special Servicer pursuant to this Agreement.
To the extent that any of the amounts described in the preceding
paragraph are collected by the Special Servicer, the Special Servicer shall
promptly pay such amounts to the Master Servicer.
(c) As compensation for its activities hereunder, the Special
Servicer shall be entitled to receive monthly the Special Servicing Fee with
respect to each Specially Serviced Loan and each REO Serviced Loan for which it
is responsible. As to each Specially Serviced Loan and REO Serviced Loan, for
any particular calendar month or applicable portion thereof, the Special
Servicing Fee shall accrue at the Special Servicing Fee Rate on the same
principal amount as interest accrues from time to time during such calendar
month (or portion thereof) on such Specially Serviced Loan or is deemed to
accrue from time to time during such calendar month (or portion thereof) on such
REO Serviced Loan, as the case may be, and shall be calculated on the same
Interest Accrual Basis as is applicable for such Specially Serviced Loan or REO
Serviced Loan, as the case may be. The Special Servicing Fee with respect to any
Specially Serviced Loan or REO Serviced Loan shall cease to accrue as of the
date a Liquidation Event occurs in respect thereof or, in the case of a
Specially Serviced Loan, as of the date it becomes a Corrected Serviced Loan.
Earned but unpaid Special Servicing Fees with respect to Specially Serviced
Loans and REO Serviced Loans shall be payable monthly out of general collections
on the Loans and any REO Properties on deposit in the Certificate Account
pursuant to Section 3.05(a); provided, however, if a Serviced Whole Loan is
involved, first out of funds on deposit in the related Serviced Whole Loan
Custodial Account pursuant to Section 3.05(f).
As further compensation for its activities hereunder, the Special
Servicer shall be entitled to receive the Workout Fee with respect to each
Corrected Serviced Loan. As to each Corrected Serviced Loan, the Workout Fee
shall be payable out of, and shall be calculated by application of the Workout
Fee Rate to, each payment of interest (other than Default Interest and Excess
Interest) and principal received from the related Mortgagor on such Serviced
Loan for so long as it remains a Corrected Serviced Loan. The Workout Fee with
respect to any such Corrected Serviced Loan will cease to be payable if a new
Servicing Transfer Event occurs with respect thereto or if the related Mortgaged
Property becomes an REO Property; provided that a new Workout Fee would become
payable if and when the subject Serviced Loan again became a Corrected Serviced
Loan. If the Special Servicer is terminated, including pursuant to Section 3.23,
or resigns in accordance with Section 6.04, it shall retain the right to receive
any and all Workout Fees payable in respect of (i) any Serviced Loans serviced
by it that became Corrected Serviced Loans during the period that it acted as
Special Servicer and that were still Corrected Serviced Loans at the time of
such termination or resignation and (ii) any Specially Serviced Loans for which
such Special Servicer has resolved the circumstances and/or conditions causing
any such Serviced Loan to be a Specially Serviced Loan, but that had not as of
the time the Special Servicer was terminated become a Corrected Serviced Loan
solely because the related Mortgagor had not made three consecutive timely
Monthly Payments and that subsequently becomes a Corrected Serviced Loan as a
result of the related Mortgagor making such three consecutive timely monthly
payments (and the successor to the Special Servicer shall not be entitled to any
portion of such Workout Fees), in each case until the Workout Fee for any such
loan ceases to be payable in accordance with the preceding sentence; provided
that, in the case of any Specially Serviced Loan described in clause (ii) of
this sentence, the terminated Special Servicer shall immediately deliver the
related Servicing File to the Master Servicer, and the Master Servicer shall
(without further compensation) monitor that all conditions precedent to such
Serviced Loan's becoming a Corrected Serviced Loan are satisfied and, further,
shall immediately transfer such Servicing File to the new Special Servicer if
and when it becomes apparent to the Master Servicer that such conditions
precedent will not be satisfied.
As further compensation for its activities hereunder, the Special
Servicer shall also be entitled to receive a Liquidation Fee with respect to
each Specially Serviced Loan or REO Serviced Loan as to which it receives any
full, partial or discounted payoff from the related Mortgagor or any Insurance
Proceeds, Condemnation Proceeds or Liquidation Proceeds. Notwithstanding the
foregoing and for the avoidance of doubt, no Liquidation Fee shall be payable in
connection with (a) the purchase of a Defaulted Serviced Loan by the Majority
Certificateholder of the Controlling Class pursuant to any applicable purchase
right set forth in Section 3.18(c) or (l) or with respect to a purchase of a
related Defaulted Serviced Loan at its fair value as determined in Section 3.18,
unless such purchase is by an assignee of the Majority Certificateholder of the
Controlling Class or the Special Servicer, such assignee is not an affiliate of
the Majority Certificateholder of the Controlling Class or the Special Servicer,
such assignment is for no material consideration and such purchase occurs or
purchase right is exercised more than 90 days from the date that the Special
Servicer has initially determined the fair value of the Mortgage Loan, (b) the
purchase of any Mortgage Loan by the 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, (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 so repurchase, or (e) the repurchase by
Barclays of the Torre Mayor Pari Passu Note A-2 Mortgage Loan or the Cayman
Islands Mortgage Loan pursuant to Section 6 of the related Mortgage Loan
Purchase and Sale Agreement, 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.
As to each such Specially Serviced Loan or REO Serviced Loan, the Liquidation
Fee shall be payable out of, and shall be calculated by application of the
Liquidation Fee Rate to, any such full, partial or discounted payoff,
Condemnation Proceeds and/or Liquidation Proceeds received or collected in
respect thereof (other than any portion of such payment or proceeds that
represents Default Charges, Excess Interest or a Prepayment Premium). The
Liquidation Fee with respect to any such Specially Serviced Loan will not be
payable if such Serviced Loan becomes a Corrected Serviced Loan.
The Special Servicer's right to receive any Special Servicing Fee,
Workout Fee and/or Liquidation Fee to which it is entitled may not be
transferred in whole or in part except in connection with the transfer of all of
the Special Servicer's responsibilities and obligations under this Agreement and
except as otherwise expressly provided herein.
(d) The Special Servicer shall be entitled to receive the following
items as additional special servicing compensation, which shall be paid prior to
remittance of such amounts, if any, which are required to be paid to any
Companion Loan Holder under any Intercreditor Agreement (the following items,
collectively, the "Additional Special Servicing Compensation"):
(i) any and all Net Default Charges collected with respect to a
Specially Serviced Loan or an REO Serviced Loan;
(ii) any and all Net Assumption Fees, Net Assumption Application
Fees, Net Modification Fees, Net Modification Application Fees, extension
fees, consent fees, waiver fees, earnout fees, late payment charges and
charges for beneficiary statements or demands that are actually received
on or with respect to a Specially Serviced Loan or an REO Serviced Loan;
(iii) 50% of any and all Net Assumption Fees, modification fees,
extension fees, consent fees and waiver fees that are actually received on
or with respect to a Performing Serviced Loan;
(iv) interest or other income earned on deposits in the Special
Servicer's applicable REO Account in accordance with Section 3.06(b) (but
only to the extent of the Net Investment Earnings, if any, with respect to
such REO Account for each Collection Period); and
(v) 50% of any and all substitution fees (net of any costs incurred
in connection with any substitution) collected on the Serviced Loans.
Notwithstanding the foregoing with respect to the fees referenced in
the immediately preceding clause (iii), the Special Servicer shall not be
entitled to such fees unless the Master Servicer was required to seek the
approval or consent of the Special Servicer pursuant to this Agreement with
respect to any consent, extension, modification or waiver related to any such
fee.
To the extent that any of the amounts described in the preceding
paragraph are collected by the Master Servicer with respect to a Specially
Serviced Loan, the Master Servicer shall promptly pay such amounts to the
Special Servicer and shall not be required to deposit such amounts in the
Certificate Account or if a Serviced Whole Loan is involved, in the related
Serviced Whole Loan Custodial Account.
(e) The Master Servicer and the Special Servicer shall each be
required (subject to Section 3.11(h) below) to pay out of its own funds all
expenses incurred by it in connection with its servicing activities hereunder
(including payment of any amounts due and owing to any Sub-Servicers retained by
it (including any termination fees) and the premiums for any blanket policy or
the standby fee or similar premium, if any, for any master force placed policy
obtained by it insuring against hazard losses pursuant to Section 3.07(b)), if
and to the extent such expenses are not payable directly out of the Certificate
Account, the related Serviced Whole Loan Custodial Account, the Reserve Accounts
or an REO Account, and neither the Master Servicer nor the Special Servicer
shall be entitled to reimbursement for any such expense incurred by it except as
expressly provided in this Agreement. If the Master Servicer is required to make
any Servicing Advance hereunder at the direction of the Special Servicer in
accordance with Section 3.03(c), Section 3.19 or otherwise, the Special Servicer
shall promptly provide the Master Servicer with such documentation regarding the
subject Servicing Advance as the Master Servicer may reasonably request.
(f) If the Master Servicer is required under this Agreement to make
a Servicing Advance, but does not do so within ten days after such Advance is
required to be made, the Trustee shall, if it has actual knowledge of such
failure on the part of the Master Servicer, give notice of such failure to the
Master Servicer. If such Advance is not made by the Master Servicer within three
Business Days after such notice, then (subject to Section 3.11(h)) the Trustee
shall make such Advance. Any failure by the Master Servicer to make a Servicing
Advance it is required to make hereunder shall constitute an Event of Default by
the Master Servicer, subject to and as provided in Section 7.01(a).
(g) The Master Servicer, the Special Servicer and the Trustee shall
each be entitled to receive interest at the Reimbursement Rate in effect from
time to time, accrued on the amount of each Advance made thereby (with its own
funds), for so long as such Advance is outstanding. Such interest with respect
to any Advances shall be payable: (i) first, in accordance with Sections 3.05
and 3.27, out of any Default Charges subsequently collected on or in respect of
the Mortgage Pool or Companion 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 Serviced Whole Loan or related REO Property is involved, on deposit in the
related Serviced Whole Loan Custodial Account. The Master Servicer shall
reimburse itself, the Special Servicer or the Trustee, as appropriate, for any
Advance made by any such Person as soon as practicable after funds available for
such purpose are deposited into the Certificate Account or if a Serviced Whole
Loan is involved, are deposited into the related Serviced Whole Loan Custodial
Account. Notwithstanding anything herein to the contrary, no interest shall be
payable with respect to any P&I Advance of a payment due on a Serviced Loan
during the applicable grace period and interest shall cease to accrue on any
Workout-Delayed Reimbursement Amount to the extent such amount has been
reimbursed from principal collections in accordance with Section 3.05.
(h) Notwithstanding anything to the contrary set forth herein, none
of the Master Servicer, the Special Servicer or the Trustee shall be required to
make any Servicing Advance that it determines in its reasonable, good faith
judgment would constitute a Nonrecoverable Servicing Advance; provided, however,
that the Special Servicer may, at its option, in consultation with the Directing
Certificateholder, make a determination in accordance with the Servicing
Standard, that any Servicing Advance previously made or proposed to be made is a
Nonrecoverable Servicing Advance and shall deliver to the Master Servicer and
the Trustee notice of such determination. Any such determination shall be
conclusive and binding on the Master Servicer and the Trustee. The determination
by any Person with an obligation hereunder to make Servicing Advances (or a
determination by the Special Servicer with respect to such Person) that it has
made a Nonrecoverable Servicing Advance or that any proposed Servicing Advance,
if made, would constitute a Nonrecoverable Servicing Advance, shall be made by
such Person in its reasonable, good faith judgment and shall be evidenced by an
Officer's Certificate delivered promptly to the Depositor and the Trustee
(unless it is the Person making such determination), and the Trustee shall
provide a copy thereof to the Directing Certificateholder, the related Companion
Loan Holder(s) (if a Serviced Whole Loan is involved and the Trustee has
knowledge of such Noteholder(s)), 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 (other
than with respect to any Non-Serviced Mortgage Loan), 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 Serviced Whole Loan is involved, the related Serviced Whole Loan
Custodial Account, in accordance with Section 3.05, any servicing expense that,
if paid by the Master Servicer or the Special Servicer, would constitute a
Nonrecoverable Servicing Advance; provided that the Master Servicer (or the
Special Servicer, if a Specially Serviced Loan or an REO Property is involved)
has determined in accordance with the Servicing Standard that making such
payment is in the best interests of the Certificateholders, or if a Serviced
Whole Loan is affected, the interests of the Certificateholders and the related
Companion Loan Holder(s) (as a collective whole taking into account the
subordination of any related Subordinate Interest(s)), as evidenced by an
Officer's Certificate delivered promptly to the Depositor and the Trustee, which
shall provide a copy thereof to the Directing Certificateholder and the related
Companion Loan Holder(s) (if a Serviced Whole Loan is involved and the Trustee
has knowledge of such Noteholder(s)), 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 Serviced Loan becomes a
Specially Serviced Loan (and, in cases where the related Serviced Loan has
become a Specially Serviced Loan, the Special Servicer shall continue to perform
or cause to be performed a physical inspection of the subject Mortgaged Property
at least once per calendar year thereafter for so long as the related Serviced
Loan remains a Specially Serviced Loan or if such Mortgaged Property becomes an
REO Property); provided that the Special Servicer shall be entitled to
reimbursement of the reasonable and direct out-of-pocket expenses incurred by it
in connection with each such inspection as Servicing Advances. Beginning in
2007, the Master Servicer shall at its expense perform or cause to be performed
an inspection of each Mortgaged Property (other than the Mortgaged Property
related to any Non-Serviced Mortgage Loan) 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(s) (if a Serviced Whole
Loan is involved and the Trustee has knowledge of such Noteholder(s)), any
Certificateholder or, if the Trustee has in accordance with Section 5.06(b)
confirmed the Ownership Interest in Certificates held thereby, any Certificate
Owner, a copy (or image in suitable electronic media) of each such written
report prepared by the Master Servicer or the Special Servicer.
(b) Commencing with respect to the calendar quarter ended June 2006,
the Special Servicer, in the case of any Specially Serviced Loan, and the Master
Servicer, in the case of each Performing Serviced Loan, shall make reasonable
efforts to collect promptly (and, in any event, shall attempt to collect within
45 days following the end of the subject quarter or 120 days following the end
of the subject year) from each related Mortgagor quarterly and annual operating
statements, budgets and rent rolls of the related Mortgaged Property, and
quarterly and annual financial statements of such Mortgagor, to the extent
required pursuant to the terms of the related Mortgage. In addition, the Special
Servicer shall cause quarterly and annual operating statements, budgets and rent
rolls to be regularly prepared in respect of each REO Property (other than any
REO Property related to any Non-Serviced Mortgage Loan) and shall collect all
such items promptly following their preparation. The Special Servicer shall
deliver copies (or images in suitable electronic media) of all of the foregoing
items so collected or obtained by it to the Master Servicer within 30 days of
its receipt thereof.
Within 60 days after receipt by the Master Servicer from the related
Mortgagors or otherwise, as to Performing Serviced Loans, and within 45 days
after receipt by the Special Servicer or otherwise, as to Specially Serviced
Loans and REO Properties (other than REO Properties related to any Non-Serviced
Mortgage Loan), of any annual operating statements or rent rolls with respect to
any Mortgaged Property (other than the Mortgaged Property related to any
Non-Serviced Mortgage Loan) or REO Property (other than any REO Property related
to any Non-Serviced Mortgage Loan), the Master Servicer (or the Special
Servicer, with respect to any Specially Serviced Loan or REO Property) shall,
based upon such operating statements or rent rolls, prepare (or, if previously
prepared, update) the related CMSA Operating Statement Analysis Report. The
Master Servicer also shall deliver to the Directing Certificateholder (in hard
copy or electronic format, as requested) copies of all such rent rolls and
operating statements. The Special Servicer shall remit a copy of each CMSA
Operating Statement Analysis Report prepared or updated by it (within ten days
following the initial preparation and each update thereof), together with, if so
requested, the underlying operating statements and rent rolls, to the Master
Servicer in a format reasonably acceptable to the Master Servicer and the
Trustee. All CMSA Operating Statement Analysis Reports relating to Performing
Serviced Loans shall be maintained by the Master Servicer, and all CMSA
Operating Statement Analysis Reports relating to any Specially Serviced Loan and
REO Property shall be maintained by the Special Servicer. The Trustee shall,
upon request, request from the Master Servicer (if necessary) and, to the extent
such items have been delivered to the Trustee by the Master Servicer, deliver to
the Directing Certificateholder, the related Companion Loan Holder(s) (if a
Serviced Whole Loan is involved and the Trustee has knowledge of such
Noteholder(s)), 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 (other than with respect to
the Mortgaged Property related to any Non-Serviced Mortgage Loan) or REO
Property (other than any REO Property related to any Non-Serviced Mortgage
Loan), 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), any Companion Loan Holder
upon its request (if the related Serviced Whole Loan is involved), a CMSA NOI
Adjustment Worksheet for such Mortgaged Property or REO Property, together with,
if so requested, the related operating statements (in an electronic format
reasonably acceptable to the Trustee and the Special Servicer).
If, with respect to any Serviced Loan (other than a Specially
Serviced Loan), the Special Servicer has any questions for the related Mortgagor
based upon the information received by the Special Servicer pursuant to Section
3.12(a) or 3.12(b), the Master Servicer shall, in this regard and without
otherwise changing or modifying its duties hereunder, reasonably cooperate with
the Special Servicer in assisting the Special Servicer to contact and solicit
information from such Mortgagor.
(c) Not later than 2:00 p.m. (New York City time) on the first
Business Day following each Determination Date, the Special Servicer shall
prepare and deliver or cause to be delivered to the Master Servicer, the
Directing Certificateholder, the related Companion Loan Holder(s) (if a Serviced
Whole Loan is involved), the following reports (or data files relating to
reports of the Master Servicer) with respect to the Specially Serviced Loans and
any REO Properties for which it is responsible, providing the required
information as of such Determination Date: (i) a CMSA Property File; (ii) a CMSA
Special Servicer Loan File (which, in each case, if applicable, will identify
each Serviced Loan by loan number and property name); and (iii) the CMSA REO
Status Report. In addition, the Special Servicer shall from time to time provide
the Master Servicer with such information in the Special Servicer's possession
regarding the Specially Serviced Loans and REO Properties as may be requested by
the Master Servicer and is reasonably necessary for the Master Servicer to
prepare each report and any supplemental information required to be provided by
the Master Servicer to the Trustee.
(d) Not later than 12:00 noon (New York City time) on the third
Business Day following each Determination Date (or with respect to the CMSA Loan
Periodic Update File, not later than 2:00 p.m. (New York City time) on the
fourth 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(s) (if a Serviced Whole Loan is
involved), in a computer-readable medium downloadable by the Trustee, the
Special Servicer, the Directing Certificateholder, any Companion Loan Holder(s)
(if the related Serviced Whole Loan is involved) (or, in the case of the
Trustee, at the Trustee's written request, in a form reasonably acceptable to
the recipient, including on a loan-by-loan basis), each of the files and reports
listed in the definition of "CMSA Investor Reporting Package" (other than the
CMSA Bond Level File and the CMSA Collateral Summary File, which are prepared by
the Trustee), providing the most recent information with respect to the Mortgage
Pool as of the related Determination Date (and which, in each case, if
applicable, will identify each subject Loan by loan number and property name).
The Master Servicer may, but is not required to, make any of the
reports or files comprising the CMSA Investor Reporting Package (other than the
CMSA Bond Level File and the CMSA Collateral Summary File, which are prepared by
the Trustee) available each month on the Master Servicer's website; provided,
that the Master Servicer shall e-mail such reports or files to the Directing
Certificateholder and the related Companion Loan Holder(s) (if a Serviced Whole
Loan is involved), until the Master Servicer's website is established. In
connection with providing access to the Master Servicer's website, the Master
Servicer may require registration and the acceptance of a disclaimer and
otherwise (subject to the preceding sentence) adopt reasonable rules and
procedures, which may include, to the extent the Master Servicer deems necessary
or appropriate, conditioning access on execution of an agreement governing the
availability, use and disclosure of such information, and which may provide
indemnification to the Master Servicer for any liability or damage that may
arise therefrom.
(e) The Special Servicer shall deliver to the Master Servicer the
reports set forth in Section 3.12(b) and Section 3.12(c), and the Master
Servicer shall deliver to the Trustee and the Special Servicer the reports set
forth in Section 3.12(d), in an electronic format reasonably acceptable to the
Special Servicer, the Master Servicer and the Trustee. The Master Servicer may,
absent manifest error, conclusively rely on the reports to be provided by the
Special Servicer pursuant to Section 3.12(b) and Section 3.12(c). The Trustee
may, absent manifest error, conclusively rely on the reports to be provided by
the Master Servicer pursuant to Section 3.12(d). In the case of information or
reports to be furnished by the Master Servicer to the Trustee pursuant to
Section 3.12(d), to the extent that such information or reports are, in turn,
based on information or reports to be provided by the Special Servicer pursuant
to Section 3.12(b) or Section 3.12(c) and to the extent that such reports are to
be prepared and delivered by the Special Servicer pursuant to Section 3.12(b) or
Section 3.12(c), the Master Servicer shall have no obligation to provide such
information or reports to the Trustee until it has received the requisite
information or reports from the Special Servicer, and the Master Servicer shall
not be in default hereunder due to a delay in providing the reports required by
Section 3.12(d) caused by the Special Servicer's failure to timely provide any
information or report required under Section 3.12(b) or Section 3.12(c).
(f) Notwithstanding the foregoing, however, the failure of the
Master Servicer or the Special Servicer to disclose any information otherwise
required to be disclosed by this Section 3.12 shall not constitute a breach of
this Section 3.12 to the extent the Master Servicer or the Special Servicer so
fails because such disclosure, in the reasonable belief of the Master Servicer
or the Special Servicer, as the case may be, would violate any applicable law or
any provision of a Loan document prohibiting disclosure of information with
respect to the Loans or Mortgaged Properties or would constitute a waiver of the
attorney-client privilege on behalf of the Trust. The Master Servicer and the
Special Servicer may disclose any such information or any additional information
to any Person so long as such disclosure is consistent with applicable law, the
related loan documents and the Servicing Standard. The Master Servicer or the
Special Servicer may affix to any information provided by it any disclaimer it
deems appropriate in its reasonable discretion (without suggesting liability on
the part of any other party hereto).
(g) The Depositor shall provide to the Master Servicer and the
Trustee the initial data (as of the respective Due Dates for the Loans in March
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) 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 any related Companion Loan Holder(s) (if the a Serviced
Whole Loan is involved), and to the OTS, the FDIC and any other banking or
insurance regulatory authority that may exercise authority over any
Certificateholder or Certificate Owner, access to any records regarding the
Loans and the servicing thereof within its control, except to the extent it is
prohibited from doing so by applicable law, the terms of the loan documents or
contract entered into prior to the Closing Date or to the extent such
information is subject to a privilege under applicable law to be asserted on
behalf of the Certificateholders. Such access shall be afforded without charge
but only upon reasonable prior written request and during normal business hours
at the offices of the Master Servicer or the Special Servicer, as the case may
be, designated by it; provided, however, that Certificateholders and Certificate
Owners shall be required to pay their own photocopying costs. The Master
Servicer and the Special Servicer shall each be entitled to affix a reasonable
disclaimer to any information provided by it for which it is not the original
source (without suggesting liability on the part of any other party hereto). In
connection with providing access to such records to the Directing
Certificateholder and any related Companion Loan Holder(s) (if a Serviced Whole
Loan is involved), the Master Servicer and the Special Servicer may each require
registration (to the extent access is provided via the Master Servicer's
internet website) and the acceptance of a reasonable disclaimer and otherwise
adopt reasonable rules and procedures, which may include, to the extent the
Master Servicer or the Special Servicer, as applicable, deems necessary or
reasonably appropriate, conditioning access on the execution and delivery of an
agreement reasonably governing the availability, use and disclosure of such
information. The failure of the Master Servicer or the Special Servicer to
provide access as provided in this Section 3.15 as a result of a confidentiality
obligation shall not constitute a breach of this Section 3.15. The Master
Servicer and the Special Servicer may each deny any of the foregoing persons
access to confidential information or any intellectual property that the Master
Servicer or the Special Servicer is restricted by license or contract from
disclosing. In connection with providing access to information pursuant to this
Section 3.15 to parties other than the Trustee, the Master Servicer and the
Special Servicer may each (i) affix a reasonable disclaimer to any information
provided by it for which it is not the original source (without suggesting
liability on the part of any other party hereto); (ii) affix to any information
provided by it a reasonable statement regarding securities law restrictions on
such information and/or condition access to information on the execution of a
reasonable confidentiality agreement; (iii) withhold access to confidential
information or any intellectual property; and (iv) withhold access to items of
information contained in the Servicing File for any Mortgage Loan if the
disclosure of such items is prohibited by applicable law or the provisions of
any related loan documents or would constitute a waiver of the attorney client
privilege. Notwithstanding any provision of this Agreement to the contrary, the
failure of the Master Servicer or the Special Servicer to disclose any
information otherwise required to be disclosed by it pursuant to this Agreement
shall not constitute a breach of this Agreement to the extent that the Master
Servicer or the Special Servicer, as the case may be, determines, in its
reasonable good faith judgment consistent with the applicable Servicing
Standard, that such disclosure would violate applicable law or any provision of
a Mortgage Loan document or Companion Loan document prohibiting disclosure of
information with respect to the Mortgage Loans or Companion Loans 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 (other than any REO Property
related to any Non-Serviced Mortgage Loan) is acquired, the deed or certificate
of sale shall be issued to the Trustee or its nominee, on behalf of the
Certificateholders or, subject to Section 3.09(b), to a single member limited
liability company of which the Trust is the sole member, which limited liability
company is formed or caused to be formed by the Special Servicer at the expense
of the Trust for the purpose of taking title to one or more REO Properties
pursuant to this Agreement. The limited liability company shall be (i)
disregarded as an entity separate from the Trust pursuant to Treasury
Regulations Section 301.7701-3(b), and (ii) a manager-managed limited liability
company, with the Special Servicer to serve as the initial manager to manage the
property of the limited liability company, including any applicable REO Property
(other than any REO Property related to any Non-Serviced Mortgage Loan), 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 Serviced Whole Loan, on
behalf of the related Companion Loan Holder(s)), shall sell any REO Property
(other than any REO Property related to any Non-Serviced Mortgage Loan) by the
end of the third calendar year following the year in which the Trust and, if
applicable, the related Companion Loan Holder(s) 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 any of the Torre Mayor Loan REMIC, REMIC I, REMIC II or
any REMIC that holds a Companion Loan. 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. In the case of the Trust's beneficial interest in a Mortgaged
Property acquired under the KinderCare Portfolio Pooling Agreement or the Torre
Mayor Pooling Agreement, the Special Servicer shall coordinate with the
applicable special servicer with respect to any REO Extension on behalf of the
Torre Mayor Loan REMIC or REMIC I, as applicable.
(b) The Special Servicer shall segregate and hold all funds
collected and received in connection with any REO Property (other than any REO
Property related to any Non-Serviced Mortgage Loan) separate and apart from its
own funds and general assets. If an REO Acquisition shall occur, except as
provided in the immediately succeeding sentence, the Special Servicer shall
establish and maintain one or more Pool REO Accounts, to be held on behalf of
the Trustee in trust for the benefit of the Certificateholders, for the
retention of revenues and other proceeds derived from each REO Property. If such
REO Acquisition occurs with respect to any Mortgaged Property securing a Whole
Loan, the Special Servicer shall establish an REO Account solely with respect to
such property (a "Serviced Whole Loan REO Account"), which may be a sub-account
of the Pool REO Account, to be held for the benefit of the Certificateholders
and the applicable Companion Loan Holder(s). 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 Serviced Whole Loan is involved, the
related Companion Loan Holder(s), of the location of an REO Account when first
established and of the new location of an REO Account prior to any change
thereof.
(c) The Special Servicer shall withdraw from the REO Account funds
necessary for the proper operation, management, maintenance and disposition of
any REO Property (other than any REO Property related to any Non-Serviced
Mortgage Loan), but only to the extent of amounts on deposit in the applicable
REO Account relating to such REO Property. By 2:00 p.m., New York City time, on
the Business Day following the end of each Collection Period, the Special
Servicer shall withdraw from the related REO Account and deposit into the
Certificate Account or the applicable Serviced Whole Loan Custodial Account, as
applicable, or deliver to the Master Servicer (which shall deposit such amounts
into the Certificate Account or the applicable Serviced Whole Loan Custodial
Account, as applicable), the aggregate of all amounts received in respect of
each such REO Property during such Collection Period, net of any withdrawals
made out of such amounts pursuant to the preceding sentence; provided that the
Special Servicer may retain in the applicable REO Account such portion of such
proceeds and collections as may be necessary to maintain a reserve of sufficient
funds for the proper operation, management, leasing, maintenance and disposition
of any such REO Property (including the creation of a reasonable reserve for
repairs, replacements, necessary capital improvements and other related
expenses), such reserve not to exceed an amount sufficient to cover such items
reasonably expected to be incurred during the following 12-month period. For
purposes of the foregoing, the Pool REO Account and a Serviced Whole Loan REO
Account correspond to the Certificate Account and the related Serviced Whole
Loan Custodial Account, respectively.
(d) The Special Servicer shall keep and maintain separate records,
on a property-by-property basis, for the purpose of accounting for all deposits
to, and withdrawals from, an REO Account pursuant to Section 3.16(b) or (c).
Section 3.17 Management of REO Property.
(a) If title to any REO Property (other than any REO Property
related to any Non-Serviced Mortgage Loan) 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 Serviced Whole Loan, for
the benefit of the related Companion Loan Holder(s) 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 Serviced Whole Loan, for the benefit of
the related Companion Loan Holder(s) (as a collective whole taking into account
the subordination of any related Subordinate Interest(s)) (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
Serviced Whole Loan is affected, the interests of the Certificateholders and the
related Companion Loan Holder(s) (as a collective whole taking into account the
subordination of any related Subordinate Interest(s)), on a net after-tax basis
as compared with net leasing such REO Property or operating such REO Property on
a different basis. In connection therewith, the Special Servicer shall deposit
or cause to be deposited on a daily basis (and in no event later than the second
Business Day following receipt of such funds), in the applicable REO Account all
revenues received by it with respect to each such REO Property and the related
REO Serviced Loan, and shall withdraw from the applicable REO Account, to the
extent of amounts on deposit therein with respect to such REO Property, funds
necessary for the proper operation, management, leasing, maintenance and
disposition of such REO Property, including, without limitation:
(i) all insurance premiums due and payable in respect of such REO
Property;
(ii) all real estate taxes and assessments in respect of such REO
Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property, if
applicable; and
(iv) all costs and expenses necessary to maintain, lease and dispose
of such REO Property.
To the extent that amounts on deposit in the REO Account in respect
of any such REO Property are insufficient for the purposes set forth in clauses
(i) through (iv) above with respect to such REO Property, the Special Servicer
shall, subject to Section 3.19(d), direct the Master Servicer to make (and the
Master Servicer shall so make) Servicing Advances in such amounts as are
necessary for such purposes unless (as evidenced in the manner contemplated by
Section 3.11(g)) the Master Servicer determines, in its reasonable, good faith
judgment, that such payment would be a Nonrecoverable Servicing Advance.
(b) Without limiting the generality of the foregoing, the Special
Servicer shall not:
(i) permit the Trust Fund to enter into, renew or extend any New
Lease with respect to any REO Property (other than any REO Property
related to any Non-Serviced Mortgage Loan), if the New Lease by its terms
will give rise to any income that does not constitute Rents from Real
Property;
(ii) permit any amount to be received or accrued under any New Lease
other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on any such REO Property,
other than the completion of a building or other improvement thereon, and
then only if more than 10% of the construction of such building or other
improvement was completed before default on the related Serviced Loan
became imminent, all within the meaning of Section 856(e)(4)(B) of the
Code; or
(iv) Directly Operate, or allow any other Person, other than an
Independent Contractor, to Directly Operate, any such REO Property on any
date more than 90 days after its acquisition date;
unless, in any such case, the Special Servicer has obtained an Opinion of
Counsel (the cost of which shall be paid by the Master Servicer as a Servicing
Advance) to the effect that such action will not cause such REO Property to fail
to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code at any time that it is held by the Trust Fund, in which case the
Special Servicer may take such actions as are specified in such Opinion of
Counsel.
(c) The Special Servicer shall contract with any Independent
Contractor for the operation and management of any REO Property (other than any
REO Property related to any Non-Serviced Mortgage Loan) 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 Serviced Whole Loan is involved, in
which case such fees shall be netted out of collections on the REO
Property prior to being remitted to the Special Servicer) shall be
reasonable and customary in light of the nature and locality of the REO
Property;
(iii) any such contract shall require, or shall be administered to
require, that the Independent Contractor (A) pay all costs and expenses
incurred in connection with the operation and management of such REO
Property, including, without limitation, those listed in Section 3.17(a),
and (B) remit all related revenues collected (net of its fees and such
costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(c) relating to any
such contract or to actions taken through any such Independent Contractor
shall be deemed to relieve the Special Servicer of any of its duties and
obligations hereunder with respect to the operation and management of any
such REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to
the same extent as if it alone were performing all duties and obligations
in connection with the operation and management of such REO Property.
The Special Servicer shall be entitled to enter into any agreement
with any Independent Contractor performing services for it related to its duties
and obligations hereunder for indemnification of the Special Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification. To the extent the costs of any contract with an
Independent Contractor for the operation and maintenance of any REO Property are
greater than the revenues from such REO Property (other than any REO Property
related to any Non-Serviced Mortgage Loan), 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 (other than any REO Property related to
any Non-Serviced Mortgage Loan) in accordance with Sections 3.17(a) and 3.17(b).
Section 3.18 Resolution of Defaulted Serviced Loans and REO
Properties.
(a) The Master Servicer, the Special Servicer (except, in the case
of the KinderCare Portfolio Pari Passu Note A-2 Mortgage Loan and the Torre
Mayor Pari Passu Note A-2 Mortgage Loan, Midland Loan Services, Inc., for so
long as it is the Special Servicer under this Agreement, may not purchase such
Mortgage Loans) or the Trustee may sell or purchase, or permit the sale or
purchase of, a Loan or a related REO Property (other than any REO Property
related to any Non-Serviced Mortgage Loan) 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
the KinderCare Portfolio Pari Passu Note A-2 Mortgage Loan, in the KinderCare
Portfolio Intercreditor Agreement or the KinderCare Portfolio Pooling Agreement,
or, in the case of the Torre Mayor Pari Passu Note A-2 Mortgage Loan, in either
Torre Mayor Intercreditor Agreement or the Torre Mayor Pooling Agreement.
For the avoidance of doubt, for so long as Midland Loan Services,
Inc., is the Special Servicer under this Agreement, Midland Loan Services, Inc.
agrees that it shall have no right to purchase the KinderCare Portfolio Pari
Passu Note A-2 Mortgage Loan or the Torre Mayor Pari Passu Note A-2 Mortgage
Loan under this Section 3.18.
(b) After the Master Servicer has pursuant to Section 3.21(a)
notified the Special Servicer of a Servicing Transfer Event and in connection
therewith has provided the Special Servicer with the information required under
Section 3.21(a) with respect to any Defaulted Serviced Loan, the Special
Servicer shall determine the fair value of such Defaulted Serviced Loan in
accordance with the Servicing Standard as hereinafter provided; provided,
however, that such determination shall be made without taking into account any
effect the restrictions on the sale of such Mortgage Loan contained herein may
have on the value of such Defaulted Serviced Loan; provided, further, that the
Special Servicer shall use reasonable efforts promptly to obtain an Appraisal
with respect to the related Mortgaged Property unless it has an Appraisal that
is less than 12 months old and has no actual knowledge of, or notice of, any
event that in the Special Servicer's judgment would materially affect the
validity of such Appraisal. The Special Servicer shall make its fair value
determination as soon as reasonably practicable (but in any event within 30
days) after its receipt of such new Appraisal, if applicable. The Special
Servicer will, from time to time, but not less often than every 90 days, adjust
its fair value determination based upon changed circumstances, new information
and other relevant factors, if any, in each instance in accordance with the
Servicing Standard. The Special Servicer shall notify the Trustee, the Master
Servicer, the Majority Certificateholder of the Controlling Class and each
related Companion Loan Holder, if a Mortgage Loan included in any Serviced 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 each related Companion
Loan Holder, if a Mortgage Loan included in any Serviced 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 Serviced Loan, pursuant to Section 3.18(e). The
reasonable out-of-pocket costs and expenses incurred by the Special Servicer in
making its fair value determination shall be paid and reimbursed as a Servicing
Advance.
In determining the fair value of any Defaulted Serviced Loan, the
Special Servicer shall take into account, among other factors, the period and
amount of the delinquency on such Defaulted Serviced Loan, the occupancy level
and physical condition of the related Mortgaged Property, the state of the local
economy in the area where the Mortgaged Property is located, the time and
expense associated with a purchaser's foreclosing on the related Mortgaged
Property and the expected recoveries from pursuing a work-out or foreclosure
strategy instead of selling the Defaulted Serviced Loan to the Option Holder. In
addition, the Special Servicer shall refer to the Determination Information and
all other relevant information obtained by it or otherwise contained in the
Mortgage File and provided to the Special Servicer; provided that the Special
Servicer shall take account of any change in circumstances regarding the related
Mortgaged Property known to the Special Servicer that has occurred subsequent
to, and that would, in the Special Servicer's reasonable judgment, materially
affect the value of the related Mortgaged Property reflected in, the most recent
related Appraisal. Furthermore, the Special Servicer shall consider all
available objective third-party information obtained from generally available
sources, as well as information obtained from Independent vendors providing real
estate services to the Special Servicer, concerning the market for distressed
real estate loans and the real estate market for the subject property type in
the area where the related Mortgaged Property is located. The reasonable cost of
all third party consultants and related reports, including but not limited to
appraisals, inspection reports and broker opinions of value, reasonably incurred
by the Special Servicer pursuant to this Section 3.18(b) shall constitute, and
be reimbursable as, Servicing Advances. The other parties to this Agreement
shall cooperate with all reasonable requests for information.
(c) At the time a Mortgage Loan becomes a Defaulted Serviced Loan,
the Special Servicer and the Majority Certificateholder of the Controlling Class
(each, together with their assignees, an "Option Holder") will have an
assignable option (the "Purchase Option") to purchase such Defaulted Serviced
Loan, subject to Section 3.18(l)) from the Trust Fund at a price (the "Option
Price") equal to (A) if the Special Servicer has not yet determined the fair
value of such Defaulted Serviced Loan, the sum of (1) the Stated Principal
Balance thereof, together with all accrued and unpaid interest thereon at the
Mortgage Rate, (2) any related Prepayment Premium then payable by the Mortgagor,
to the extent the Special Servicer or the Special Servicer's assignee is
identified as the Person that will acquire the related Mortgage Loan, (3) all
related Advances for which the Trust Fund, the Master Servicer, the Special
Servicer or the Trustee has not been reimbursed, together with all accrued and
unpaid interest thereon at the Advance Rate, and (4) all accrued Master
Servicing Fees, Special Servicing Fees, Trustee Fees, Liquidation Fees, Workout
Fees and Additional Trust Fund Expenses allocable to such Defaulted Serviced
Loan whether recovered or unrecovered from the related Mortgagor or (B) if the
Special Servicer has determined the fair value of such Defaulted Serviced Loan
pursuant to Section 3.18(b), an amount at least equal to such fair value with
respect to any Purchase Option held by the Majority Certificateholder of the
Controlling Class or the Special Servicer only. Notwithstanding the foregoing,
for a period of 90 days after it receives notice of the Special Servicer's fair
value determination and the related expiration (if any) of the applicable
purchase option held by the related Whole Loan Purchase Option Holder (the
"Option Period"), only the Purchase Option held by the Majority
Certificateholder of the Controlling Class may be exercised. Notwithstanding the
foregoing and for the avoidance of doubt, none of the Majority Certificateholder
of the Controlling Class, the related Whole Loan Purchase Option Holder or the
related Mezzanine Loan Holder (with respect to a Mezzanine Loan), shall be
required to pay a Liquidation Fee with respect to any applicable purchase right
under this Agreement or in the applicable Intercreditor Agreement or with
respect to a purchase of a related Defaulted Serviced Loan at its fair value as
determined in this Section 3.18 if such purchase occurs or purchase right is
exercised not later than 90 days from the date that the Special Servicer has
initially determined the fair value for the related Defaulted Serviced Loan.
Any Option Holder may sell, transfer, assign or otherwise convey its
Purchase Option with respect to any Defaulted Serviced Loan to any party (other
than a Person whose acquisition of the Defaulted Serviced Loan would violate the
terms of any related intercreditor or similar agreement) at any time after the
related Mortgage Loan becomes a Defaulted Serviced Loan. The transferor of any
Purchase Option shall notify the Trustee and the Master Servicer of such
transfer and such notice shall include the transferee's name, address, telephone
number, facsimile number and appropriate contact person(s) and shall be
acknowledged in writing by the transferee.
Notwithstanding the foregoing, the Majority Certificateholder of the
Controlling Class shall have the right to exercise its Purchase Option prior to
any exercise of the Purchase Option by the Special Servicer; provided, however,
if the Purchase Option is not exercised by the Majority Certificateholder of the
Controlling Class or any assignee thereof within 60 days of a Mortgage Loan
becoming a Defaulted Serviced Loan, then the Special Servicer shall have the
right to exercise its Purchase Option prior to any exercise by the Majority
Certificateholder of the Controlling Class and the Special Servicer or its
assignee may exercise such Purchase Option at any time during the 30-day period
immediately following the expiration of such 60-day period Following the
expiration of each such 30-day period, the Majority Certificateholder of the
Controlling Class shall again have the exclusive right to exercise the Purchase
Option.
Each Option Holder's Purchase Option with respect to any Defaulted
Serviced Loan, if not exercised, will automatically terminate (A) once the
related Defaulted Serviced Loan is no longer a Defaulted Serviced Loan;
provided, however, that if such Mortgage Loan subsequently becomes a Defaulted
Serviced Loan, the related Purchase Option shall again be exercisable, (B) upon
the acquisition, by or on behalf of the Trust Fund, of title to the related
Mortgaged Property through foreclosure or deed-in-lieu of foreclosure, (C) upon
the modification or pay-off, in full or at a discount, of such Defaulted
Serviced Loan in connection with a workout, or (D) subject to the Master
Servicer's determination set forth in Section 3.18(e) below, upon another Option
Holder's exercise of its Purchase Option with respect to the related Mortgage
Loan becoming effective pursuant to Section 3.18(d) below.
(d) Upon receipt of notice from the Special Servicer indicating that
a Mortgage Loan has become a Defaulted Serviced Loan, and after the expiration
of the Option Period, each Option Holder (whether the original grantee of such
option or any subsequent transferee) may exercise its Purchase Option by
providing the Master Servicer and the Trustee written notice thereof (the
"Purchase Option Notice"), in the form of Exhibit I, which notice shall identify
the Person that, on its own or through an Affiliate, will acquire the related
Mortgage Loan upon closing and shall specify a cash exercise price at least
equal to the Option Price. Immediately upon receipt of such Purchase Option
Notice, the Master Servicer shall notify the remaining Option Holders that a
Purchase Option has been exercised. Within ten days thereafter, each remaining
Option Holder may submit to the Master Servicer and the Trustee a Purchase
Option Notice for the related Defaulted Serviced Loan. Upon the expiration of
such ten-day period, or such sooner time as all remaining Option Holders have
submitted Purchase Option Notices, the Master Servicer shall notify the Option
Holder whose Purchase Option Notice included the highest exercise price that the
exercise of its Purchase Option is effective. The Master Servicer shall also
notify the Trustee of such effective exercise. In the event that more than one
Option Holder exercises its Purchase Option at the same price, the Purchase
Option Notice first received by the Master Servicer shall be effective. The
exercise of any Purchase Option pursuant to this Section 3.18(d) shall be
irrevocable.
(e) If the Special Servicer or any Controlling Class Option Holder,
or any of their respective Affiliates, is identified in the Purchase Option
Notice as the Person expected to acquire the related Mortgage Loan, and the
Option Price is based upon the Special Servicer's fair value determination, the
Master Servicer shall determine whether the Option Price represents fair value
for the Defaulted Serviced Loan, in the manner set forth in Section 3.18(b) and
as soon as reasonably practicable but in any event within 30 days (except as
such period may be extended as set forth in this paragraph) of its receipt of
the Purchase Option Notice and Determination Information from the Special
Servicer. In determining whether the Option Price represents the fair value of
such Defaulted Serviced Loan, the Master Servicer may obtain an opinion as to
the fair value of such Defaulted Serviced Loans, taking into account the factors
set forth in Section 3.18(b), from a Qualified Appraiser or other Independent
expert of recognized standing having experience in evaluating the value of
defaulted mortgage loans, which opinion shall be based on a review, analysis and
evaluation of the Determination Information, and to the extent such Qualified
Appraiser or third party deems any such Determination Information to be
defective, incorrect, insufficient or unreliable, such Person may base its
opinion on such other information it deems reasonable or appropriate, and,
absent manifest error, the Master Servicer may conclusively rely on the opinion
of any such Person that was chosen by the Master Servicer with reasonable care.
Notwithstanding the 30-day time period referenced above in this paragraph, the
Master Servicer will have an additional 15 days to make a fair value
determination if the Person referenced in the immediately preceding sentence has
determined that the Determination Information is defective, incorrect,
insufficient or unreliable. The reasonable costs of all appraisals, inspection
reports and opinions of value, reasonably incurred by the Master Servicer or any
such third party pursuant to this paragraph shall be advanced by the Master
Servicer and shall constitute, and be reimbursable as, Servicing Advances. In
connection with the Master Servicer's determination of fair value, the Special
Servicer shall deliver to the Master Servicer the Determination Information for
the use of the Master Servicer or any such third party.
Notwithstanding anything contained in this Section 3.18(e) to the
contrary, if the Special Servicer or the Majority Certificateholder of the
Controlling Class, or any of their respective Affiliates, is identified in the
Purchase Option Notice as the Person expected to acquire the related Mortgage
Loan, and the Option Price is based upon the Special Servicer's fair value
determination, and the Master Servicer and the Special Servicer are Affiliates,
the Trustee shall determine whether the Option Price represents fair value for
the Defaulted Serviced Loan, in the manner set forth in Section 3.18(b) and as
soon as reasonably practicable but in any event within 30 days (except as such
period may be extended as set forth in this paragraph) of its receipt of the
Purchase Option Notice and Determination Information from the Special Servicer.
In determining whether the Option Price represents the fair value of such
Defaulted Serviced Loan, the Trustee may obtain an opinion as to the fair value
of such Defaulted Serviced Loans, taking into account the factors set forth in
Section 3.18(b), from a Qualified Appraiser or other Independent expert of
recognized standing having experience in evaluating the value of defaulted
mortgage loans, which opinion shall be based on a review, analysis and
evaluation of the Determination Information, and to the extent such Qualified
Appraiser or third party deems any such Determination Information to be
defective, incorrect, insufficient or unreliable, such Person may base its
opinion on such other information it deems reasonable or appropriate, and absent
manifest error, the Trustee may conclusively rely on the opinion of any such
Person that was chosen by the Trustee with reasonable care. Notwithstanding the
30-day time period referenced above in this paragraph, the Trustee will have an
additional 15 days to make a fair value determination if the Person referenced
in the immediately preceding sentence has determined that the Determination
Information is defective, incorrect, insufficient or unreliable. The reasonable
costs of all appraisals, inspection reports and opinions of value, reasonably
incurred by the Trustee or any such third party pursuant to this paragraph shall
be advanced by the Master Servicer and shall constitute, and be reimbursable as,
Servicing Advances. In connection with the Trustee's determination of fair value
the Special Servicer shall deliver to the Trustee the Determination Information
for the use of the Trustee or any such third party.
In the event a designated third party determines that the Option
Price is less than the fair value of the Defaulted Serviced Loan, such party
shall provide its determination, together with all information and reports it
relied upon in making such determination, to the Special Servicer, who shall
then adjust its fair value determination and, consequently, the Option Price,
pursuant to Section 3.18(b). The Special Servicer shall promptly provide written
notice of any adjustment of the Option Price to the Option Holder whose Purchase
Option has been declared effective pursuant to Section 3.18(d) above. Upon
receipt of such notice, such Option Holder shall have three Business Days to (i)
accept the Option Price as adjusted and proceed in accordance with Section
3.18(f) below, or (ii) reject the Option Price as adjusted, in which case such
Option Holder shall not be obligated to close the purchase of the Defaulted
Serviced Loan. Upon notice from such Option Holder, or the Special Servicer,
that such Option Holder rejects the Option Price as adjusted, the Master
Servicer and the Trustee shall provide the notices described in the second
paragraph of Section 3.18(f) below and thereafter any Option Holder may exercise
its purchase option in accordance with this Section 3.18, at the Option Price as
adjusted.
(f) The Option Holder whose Purchase Option is declared effective
pursuant to Section 3.18(d) above shall be required to pay the purchase price
specified in its Purchase Option Notice to the Master Servicer within ten
Business Days of its receipt of the Master Servicer's notice confirming that the
exercise of its Purchase Option is effective. Upon receipt of an Officer's
Certificate from the Master Servicer specifying the date for closing the
purchase of the related Defaulted Serviced Loan, and the purchase price to be
paid therefor, the Trustee shall deliver at such closing for release to or at
the direction of such Option Holder, the related Mortgage File, and shall
execute and deliver such instruments of transfer or assignment, in each case
without recourse, as shall be provided to it by such Option Holder and are
reasonably necessary to vest in the purchaser or any designee thereof the
ownership of such Mortgage Loan. In connection with any such purchase by any
Person other than it, the Special Servicer shall deliver the related Mortgage
File to or at the direction of the purchaser. In any case, the Master Servicer
shall deposit the purchase price into the Certificate Account within one
Business Day following receipt.
The Master Servicer shall immediately notify the Trustee and the
Special Servicer upon the holder of the effective Purchase Option's failure to
remit the purchase price specified in its Purchase Option Notice pursuant to
this Section 3.18(f). Thereafter, the Trustee shall notify each Option Holder of
such failure and any Option Holder may then exercise its purchase option in
accordance with this Section 3.18.
(g) Unless and until the Purchase Option with respect to any
Defaulted Serviced Loan is exercised, the Special Servicer shall pursue such
other resolution strategies with respect to such Defaulted Serviced Loan
including workout, foreclosure and sale of any REO Property, as the Special
Servicer may deem appropriate, consistent with the Asset Status Report and the
Servicing Standard; provided, however, the Special Servicer shall not sell any
Defaulted Serviced Loan (other than in connection with exercise of a related
Purchase Option).
(h) The Special Servicer shall sell an REO Property (other than any
REO Property related to any Non-Serviced Mortgage Loan) in the manner set forth
in Section 3.16(a). The Special Servicer may purchase any REO Property (other
than any REO Property related to any Non-Serviced Mortgage Loan) at the Purchase
Price therefor. The Special Servicer may also offer to sell to any Person any
REO Property (other than any REO Property related to any Non-Serviced Mortgage
Loan), if and when the Special Servicer determines, consistent with the
Servicing Standard, that such a sale would be in the best economic interests of
the Trust Fund. The Special Servicer shall give the Trustee, the Master Servicer
and the Directing Certificateholder, the related Controlling Holder and each
Companion Loan Holder (if a Serviced Whole Loan is involved), not less than ten
days' prior written notice of its intention to sell any such REO Property, in
which case the Special Servicer shall accept the highest offer received from any
Person for any such REO Property in an amount at least equal to the Purchase
Price therefor. To the extent permitted by applicable law, and subject to the
Servicing Standard, the Master Servicer, an Affiliate of the Master Servicer,
the Special Servicer or an Affiliate of the Special Servicer, or an employee of
any of them may act as broker in connection with the sale of any such REO
Property and may retain from the proceeds of such sale a brokerage commission
that does not exceed the commission that would have been earned by an
independent broker pursuant to a brokerage agreement entered into at arm's
length.
In the absence of any such offer, the Special Servicer shall accept
the highest offer received from any Person that is determined by the Special
Servicer to be a fair price for such REO Property, if the highest offeror is a
Person other than the Special Servicer, the Master Servicer (if the Master
Servicer and Special Servicer are 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 (other
than any REO Property related to any Non-Serviced Mortgage Loan), the Trustee
shall obtain and may conclusively rely on an Appraisal from a Qualified
Appraiser, at the expense of the Trust Fund. In determining whether any offer
constitutes a fair price for any such REO Property, the Trustee (or, if
applicable, such Qualified Appraiser) shall take into account, and any appraiser
shall be instructed to take into account, as applicable, among other factors,
the physical condition of such REO Property, the state of the local economy and
the Trust Fund's obligation to comply with REMIC Provisions.
(i) Subject to the Servicing Standard and the REMIC Provisions, the
Special Servicer shall act on behalf of the Trust Fund in negotiating and taking
any other action necessary or appropriate in connection with the sale of any
such REO Property, including the collection of all amounts payable in connection
therewith. A sale of any such REO Property shall be without recourse to, or
representation or warranty by, the Trustee, the Depositor, any Servicer, or the
Trust Fund (except that any contract of sale and assignment and conveyance
documents may contain customary representations and warranties of title,
condition and authority so long as the only recourse for breach thereof is to
the Trust Fund) and, if consummated in accordance with the terms of this
Agreement, none of the Master Servicer, the Special Servicer, the Depositor or
the Trustee shall have any liability to the Trust Fund or any Certificateholder
with respect to the purchase price therefor accepted by the Special Servicer or
the Trustee.
(j) The Special Servicer shall, within two Business Days following
its receipt of available funds, remit to the Master Servicer the proceeds of any
sale after deduction of the expenses of such sale incurred in connection
therewith for deposit into the Certificate Account. The Trustee, upon receipt of
an Officer's Certificate from the Master Servicer to the effect that such
deposit has been made, shall release or cause to be released to the party or
parties effecting such purchase (or any designee thereof) the related Mortgage
File, and shall execute and deliver such instruments of transfer or assignment,
in each case without recourse, as shall be provided to it and are reasonably
necessary to vest in the purchaser of such Defaulted Serviced Loan effecting
such purchase (or any designee thereof) ownership of such Defaulted Serviced
Loan. In connection with any such purchase, the Special Servicer shall deliver
the related Servicing File to the purchaser of such Defaulted Serviced Loan with
the cooperation of the Master Servicer effecting such purchase (or any designee
thereof).
(k) Subject to Sections 3.18(a) through 3.18(j) above, the Special
Servicer shall act on behalf of the Trustee in negotiating and taking any other
action necessary or appropriate in connection with the sale of any Defaulted
Serviced Loan or REO Property (other than any REO Property related to any
Non-Serviced Mortgage Loan), 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 Serviced Whole Loan is involved, in
the related Loan Custodial Account, provided no such fees and charges shall be
charged by the Special Servicer to the Controlling Class Option Holder or any
assignee in connection with the sale of Defaulted Serviced Loans. Any sale of a
Defaulted Serviced Loan or any REO Property shall be final and without recourse
to the Trustee or the Trust except as provided in Section 3.18(i), and if such
sale is consummated in accordance with the terms of this Agreement, none of the
Depositor, the Special Servicer, the Master Servicer or the Trustee shall have
any liability to any Certificateholder with respect to the purchase price
therefor accepted by the Special Servicer or the Trustee.
(l) With respect to the KinderCare Portfolio Pari Passu Note A-2
Mortgage Loan, the parties hereto agree and acknowledge that, pursuant to the
KinderCare Portfolio Pooling Agreement, such Mortgage Loan may be subject to a
fair value purchase option if the KinderCare Portfolio Pari Passu Note A-1 that
was deposited into the trust created under the KinderCare Portfolio Pooling
Agreement becomes a defaulted mortgage loan (in accordance with the terms of the
KinderCare Portfolio Pooling Agreement). Upon receipt of notice that the
KinderCare Portfolio Whole Loan has become a defaulted mortgage loan (in
accordance with the KinderCare Portfolio Pooling Agreement), the Option Holders
shall have the right to purchase the related Mortgage Loan from the Trust at a
purchase price determined in accordance with Section 3.18 of the KinderCare
Portfolio Pooling Agreement (as set forth therein). Such option shall be
exercised in accordance with and shall otherwise be on the same terms as the
terms of Section 3.18 of the KinderCare Portfolio Pooling Agreement. The
purchase option with respect to the KinderCare Portfolio Pari Passu Note A-2
Mortgage Loan shall in each case be subject to the purchase rights of the
KinderCare Portfolio Controlling Holder in accordance with the terms of and as
set forth in the KinderCare Intercreditor Agreement.
With respect to the Torre Mayor Pari Passu Note A-2 Mortgage Loan,
the parties hereto agree and acknowledge that, pursuant to the Torre Mayor
Pooling Agreement, such Mortgage Loan may be subject to a fair value purchase
option if the Torre Mayor Pari Passu Note A-1 that was deposited into the trust
created under the Torre Mayor Pooling Agreement becomes a defaulted mortgage
loan (in accordance with the terms of the Torre Mayor Pooling Agreement). Upon
receipt of notice that the Torre Mayor Whole Loan has become a defaulted
mortgage loan (in accordance with the Torre Mayor Pooling Agreement), the Option
Holders shall have the right to purchase the related Mortgage Loan from the
Trust at a purchase price determined in accordance with Section 3.18 of the
Torre Mayor Pooling Agreement (as set forth therein). Such option shall be
exercised in accordance with and shall otherwise be on the same terms as the
terms of Section 3.18 of the Torre Mayor Pooling Agreement. The purchase option
with respect to the Torre Mayor Pari Passu Note A-2 Mortgage Loan shall in each
case be subject to the purchase rights of the Torre Mayor Note B Holder and the
Torre Mayor Note C Holder in accordance with the terms of and as set forth in
the related Intercreditor Agreement.
(m) Notwithstanding anything to the contrary herein, (i) each
Mezzanine Lender may be entitled to purchase the related Mortgage Loan in
accordance with the terms and conditions set forth in the related Mezzanine
Intercreditor Agreement, even after it has been purchased out of the Trust Fund
pursuant to this Section 3.18, (ii) the Purchase Option Holder (as defined in
the KinderCare Portfolio Intercreditor Agreement may be entitled to purchase the
KinderCare Portfolio Pari Passu Note A-2 Mortgage Loan in accordance with the
terms and conditions set forth in Section 5 of the KinderCare Portfolio
Intercreditor Agreement, and (iii) the Torre Mayor Note C Holder or the Torre
Mayor Note B Holder may be entitled to purchase the Torre Mayor Pari Passu Note
A-2 Mortgage Loan in accordance with the terms and conditions set forth in
Section 8 of the Torre Mayor 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, (1) the
related Mezzanine Lender as set forth in the related Mezzanine Intercreditor
Agreement, (2) the KinderCare Portfolio Controlling Holder as set forth in the
KinderCare Portfolio Intercreditor Agreement, and (3) the Torre Mayor Note C
Holder or the Torre Mayor Note B Holder as set forth in the Torre Mayor
Intercreditor Agreement.
(n) [Reserved].
(o) Notwithstanding anything in this Agreement to contrary, in no
event with respect to the KinderCare Portfolio Pari Passu Note A-2 Mortgage Loan
or the Torre Mayor Pari Passu Note A-2 Mortgage Loan will the related Mortgagor
(or any of its affiliates) be permitted to purchase such Mortgage Loan should
such Mortgage Loan become a Defaulted Serviced Loan under this Agreement.
(p) Notwithstanding anything to the contrary, upon the enactment of
any Mexican tax legislation that would trigger a Mexico Gross-Up Payment and so
long as an event of default under the Torre Mayor Pari Passu Note A-2 Mortgage
Loan has occurred and is continuing, the Master Servicer shall notify the
related Mortgage Loan Seller of such enactment, in which case the related
Mortgage Loan Seller may, in its sole discretion, elect to purchase the Torre
Mayor Pari Passu Note A-2 Mortgage Loan from the Trust Fund at a price equal to
the Purchase Price for such Mortgage Loan.
(q) Notwithstanding anything to the contrary, upon the enactment of
any Cayman Islands tax legislation that would trigger a Cayman Islands Gross-Up
Payment and so long as an event of default under the Cayman Islands Mortgage
Loan has occurred and is continuing, the Master Servicer shall notify the
related Mortgage Loan Seller of such enactment, in which case the related
Mortgage Loan Seller may, in its sole discretion, elect to purchase the Cayman
Islands Mortgage Loan from the Trust Fund at a price equal to the Purchase Price
for such Mortgage Loan.
Section 3.19 Additional Obligations of the Master Servicer and the
Special Servicer.
(a) The Master Servicer shall maintain at its Primary Servicing
Office and shall, upon reasonable advance written notice, make available for
review by each Rating Agency and by any Certificateholder or Certificate Owner
or any Person identified to the Master Servicer as a prospective transferee of a
Certificate or an interest therein, copies of the Servicing Files; provided
that, if the Master Servicer in its reasonable, good faith determination
believes that any item of information contained in such Servicing Files is of a
nature that it should be conveyed to all Certificateholders at the same time, it
shall, as soon as reasonably possible following its receipt of any such item of
information, disclose such item of information to the Trustee as part of the
reports to be delivered to the Trustee by the Master Servicer pursuant to
Section 4.02(b), and until the Trustee has either disclosed such information to
all Certificateholders in a Distribution Date Statement or has properly filed
such information with the Commission on behalf of the Trust under the Exchange
Act, the Master Servicer shall be entitled to withhold such item of information
from any Certificateholder or Certificate Owner or prospective transferee of a
Certificate or an interest therein; and provided, further, that the Master
Servicer shall not be required to make particular items of information contained
in the Servicing File for any 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 (other than any REO Property
related to any Non-Serviced Mortgage Loan), 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 (other than any Non-Serviced Mortgage Loan) or
Serviced Whole Loan (each such Mortgage Loan or Whole Loan and any related REO
Serviced Loan, until it ceases to be such in accordance with the following
paragraph, a "Required Appraisal Serviced Loan"), the Special Servicer shall
obtain (or, if such Required Appraisal Serviced Loan has a Stated Principal
Balance of $2,000,000 or less, at its discretion, conduct) an Appraisal of the
related Mortgaged Property, unless an Appraisal thereof had previously been
obtained (or, if applicable, conducted) within the preceding 12-month period and
there has been no subsequent material change in the circumstances surrounding
the related Mortgaged Property that, in the judgment of the Special Servicer,
would materially affect the value of the property, and shall deliver a copy of
such Appraisal to the Trustee, the Master Servicer, the Directing
Certificateholder, the related Companion Loan Holder(s) (if a Serviced Whole
Loan is involved), and any Requesting Subordinate Certificateholder (subject to
the second paragraph of Section 12.10). If such Appraisal is obtained from a
Qualified Appraiser, the cost thereof shall be covered by, and be reimbursable
as, a Servicing Advance. Promptly following the receipt of, and based upon, such
Appraisal, the Special Servicer shall determine and report to the Trustee, the
Master Servicer, the Directing Certificateholder, the then applicable Appraisal
Reduction Amount, if any, with respect to the subject Required Appraisal
Serviced Loan.
For so long as any Serviced Loan or REO Serviced Loan remains a
Required Appraisal Serviced Loan, the Special Servicer shall, within 30 days of
each anniversary of such loan's having become a Required Appraisal Serviced
Loan, obtain (or, if such Required Appraisal Serviced Loan has a Stated
Principal Balance of $2,000,000 or less, at its discretion, conduct) an update
of the prior Appraisal, and shall deliver a copy of such update to the Trustee,
the Master Servicer, the Directing Certificateholder. If such update is obtained
from a Qualified Appraiser, the cost thereof shall be covered by, and be
reimbursable as, a Servicing Advance. Promptly following the receipt of, and
based upon, such update, the Special Servicer shall redetermine and report to
the Trustee, the Master Servicer, the Directing Certificateholder and the
related Companion Loan Holder(s) (if a Serviced Whole Loan is involved), the
then applicable Appraisal Reduction Amount, if any, with respect to the subject
Required Appraisal Serviced Loan.
The Directing Certificateholder and the related Companion Loan
Holder(s) (if a Serviced Whole Loan is involved) have the right at any time to
require that the Special Servicer obtain a new Appraisal of the subject
Mortgaged Property in accordance with MAI standards from a Qualified Appraiser
selected by the Special Servicer, at the expense of the Controlling Class
Certificateholder, the related Companion Loan Holder(s) (if a Serviced Whole
Loan is involved). Upon receipt of such Appraisal the Special Servicer shall
deliver a copy thereof to the Trustee, the Master Servicer, the Directing
Certificateholder and the related Companion Loan Holder(s) (if a Serviced Whole
Loan is involved). Promptly following the receipt of, and based upon, such
Appraisal, the Special Servicer shall redetermine and report to the Trustee, the
Master Servicer, the Directing Certificateholder and the related Companion Loan
Holder(s) (if a Serviced Whole Loan is involved), the then applicable Appraisal
Reduction Amount, if any, with respect to the subject Required Appraisal
Serviced Loan.
(c) The Master Servicer and the Special Servicer shall each deliver
to the other, to the Trustee (but only upon its request) and to the Directing
Certificateholder and the related Companion Loan Holder(s) (if a Serviced Whole
Loan is involved), copies of all Appraisals, environmental reports and
engineering reports (or, in each case, updates thereof) obtained with respect to
any Mortgaged Property or REO Property. Upon the request of any Rating Agency or
any Holder of a Non-Registered Certificate (except a Class V, Class R-I or Class
R-II Certificate), pursuant to Section 8.12(b), the Trustee will inform the
Master Servicer or Special Servicer, as applicable, of such request and, if
necessary, the Master Servicer or Special Servicer, as applicable, will deliver
instructions, whereupon either such party, as applicable, shall deliver copies
of any of the items delivered pursuant to the preceding sentence to such
requesting Person.
(d) No more frequently than once per calendar month, the Special
Servicer may require the Master Servicer, and the Master Servicer shall be
obligated subject to the second following paragraph to reimburse the Special
Servicer for any Servicing Advances that were made by the Special Servicer
(notwithstanding the fact that it has no obligation to make such Servicing
Advances), but not previously reimbursed (whether pursuant to this Section
3.19(d) or otherwise) to the Special Servicer, and to pay the Special Servicer
interest thereon at the Reimbursement Rate from the date made to, but not
including, the date of reimbursement. Such reimbursement and any accompanying
payment of interest shall be made within ten days of the request therefor by
wire transfer of immediately available funds to an account designated by the
Special Servicer. Upon the Master Servicer's reimbursement to the Special
Servicer of any Servicing Advance and payment to the Special Servicer of
interest thereon, all in accordance with this Section 3.19(d), the Master
Servicer shall for all purposes of this Agreement be deemed to have made such
Servicing Advance at the same time as the Special Servicer originally made such
Advance, and accordingly, the Master Servicer shall be entitled to reimbursement
for such Advance, together with Advance Interest thereon, at the same time, in
the same manner and to the same extent as the Master Servicer would otherwise
have been entitled if it had actually made such Servicing Advance.
Notwithstanding anything to the contrary contained in this
Agreement, if the Special Servicer (i) is required under any other provision of
this Agreement to direct the Master Servicer to make a Servicing Advance or (ii)
is otherwise aware a reasonable period in advance that it is reasonably likely
that the Special Servicer will incur a cost or expense that will, when incurred,
constitute a Servicing Advance, the Special Servicer shall (in the case of
clause (i) preceding), and shall use reasonable efforts to (in the case of
clause (ii) preceding), request that the Master Servicer make such Servicing
Advance, such request to be made in writing and confirmed by both parties and in
a timely manner that does not materially and adversely affect the interests of
any Certificateholder, and accompanied by sufficient information for the Master
Servicer to make recoverability determinations, and at least ten Business Days
prior to the date on which failure to make such Servicing Advance would (with
notice from the Trustee regardless of whether such notice is actually received)
constitute an Event of Default pursuant to Section 7.01(a)(v); provided,
however, that the Special Servicer (with respect to Specially Serviced Loans and
REO Properties) is allowed but not required to make any Servicing Advance that
it fails to timely request the Master Servicer to make. Subject to the following
paragraph, the Master Servicer shall have the obligation to make any such
Servicing Advance that it is requested by the Special Servicer to make within
five Business Days of the Master Servicer's receipt of such request and such
information and documents as are reasonably necessary for the Master Servicer to
make such Servicing Advance and to determine recoverability. The Master Servicer
shall be entitled to reimbursement for any Servicing Advance made by it at the
direction of the Special Servicer, together with Advance Interest thereon, at
the same time, in the same manner and to the same extent as the Master Servicer
is entitled with respect to any other Servicing Advance made thereby.
Notwithstanding the foregoing provisions of this Section 3.19(d) or
any other provision of this Agreement to the contrary, the Master Servicer shall
not be required to reimburse the Special Servicer for, or make at the Special
Servicer's direction, any Servicing Advance if the Master Servicer determines in
its reasonable, good faith judgment that the Servicing Advance that the Special
Servicer is directing the Master Servicer to reimburse it for or make hereunder,
although not characterized by the Special Servicer as a Nonrecoverable Servicing
Advance, is or would be, if made, a Nonrecoverable Servicing Advance. The Master
Servicer shall notify the Special Servicer and the Trustee in writing of such
determination. Such notice shall not obligate the Special Servicer to make such
Servicing Advance.
(e) The Master Servicer shall deliver to the Trustee for deposit
into the Distribution Account by 1:30 p.m. (New York City time) on each Master
Servicer Remittance Date, without any right of reimbursement therefor, a cash
payment (a "Compensating Interest Payment") in an amount equal to the sum of (i)
the aggregate amount of Balloon Payment Interest Shortfalls, if any, incurred in
connection with Balloon Payments received in respect of the Mortgage Pool during
the most recently ended Collection Period, plus (ii) the lesser of (A) the
aggregate amount of Prepayment Interest Shortfalls, if any, incurred in
connection with Principal Prepayments received in respect of the Mortgage Pool
(other than any Non-Serviced Mortgage Loan) during the most recently ended
Collection Period, and (B) the aggregate of (1) that portion of its Master
Servicing Fees for the related Collection Period that is, in the case of each
and every Loan and REO Serviced Loan for which such Master Servicing Fees are
being paid in such Collection Period, calculated at 0.01% per annum, and (2) all
Prepayment Interest Excesses received in respect of the Mortgage Pool during the
most recently ended Collection Period, plus (iii) in the event that any
Principal Prepayment was received on the last Business Day of the second most
recently ended Collection Period, but for any reason was not included as part of
the Master Servicer Remittance Amount for the preceding Master Servicer
Remittance Date (other than because of application of the subject Principal
Prepayment in accordance with Section 3.05(a) for another purpose), the total of
all interest and other income accrued or earned on the amount of such Principal
Prepayment while it is on deposit in the Certificate Account or, in the case of
a Mortgage Loan included in a Serviced Whole Loan, Section 3.05(f); provided,
however, that if a Prepayment Interest Shortfall occurs as a result of the
Master Servicer's allowing the related Borrower to deviate from the terms of the
related loan documents regarding principal prepayments (other than (v) on a
Specially Serviced Loan, (w) a payment of insurance proceeds or condemnation
proceeds, (x) a payment subsequent to a default under the related loan documents
(provided the Master Servicer reasonably believes that acceptance of such
payment is consistent with the Servicing Standard and has obtained the consent
of the Special Servicer), (y) pursuant to applicable law or a court order, or
(z) at the request or with the consent of the Directing Certificateholder),
then, for purposes of calculating the Compensating Interest Payment for the
subject Collection Period, the amount in clause (ii) above shall be the
aggregate of (A) all Master Servicing Fees for such Collection Period and (B)
all Prepayment Interest Excesses and, to the extent earned on principal
prepayments, Net Investment Earnings received by the Master Servicer during such
Collection Period; and provided, further, that the rights of the
Certificateholders to offset the aggregate Prepayment Interest Shortfalls shall
not be cumulative.
(f) Except under the same circumstances that it would be permitted
to waive a prepayment lockout provision in the subject Serviced Loan pursuant to
Section 3.20(a), neither the Master Servicer nor the Special Servicer shall
consent to any Mortgagor's prepaying its Loan, partially or in its entirety, if
the Mortgagor would be prohibited from doing so without such consent. In each
case subject to the Servicing Standard and applicable law and to the extent
permitted by the related loan documents, the Master Servicer and the Special
Servicer agree not to accept any Principal Prepayments with respect to any
Serviced Loan on a date other than the applicable due date therefor except that
the Special Servicer shall be permitted to accept Principal Prepayments with the
consent of the Directing Certificateholder.
(g) The Master Servicer shall not exercise any discretionary right
it has with respect to any Serviced Loan pursuant to the related Mortgage Note
or Mortgage to apply any amounts maintained as an escrow or reserve to the
principal balance of such Serviced Loan except in the case of a default
thereunder.
(h) The Master Servicer shall send written notice to each Borrower
to the effect that, if applicable, the Master Servicer and/or the Trustee have
been appointed as the "designee" of the lender under any related Lock-Box
Agreement.
(i) In connection with each prepayment of principal received
hereunder, the Master Servicer shall calculate any applicable Prepayment Premium
under the terms of the related Mortgage Note. Promptly following its
determination thereof, the Master Servicer shall disclose to the Trustee its
calculation of any such Prepayment Premium.
(j) The Master Servicer shall, as to each Serviced Loan that is
secured by the interest of the related Mortgagor under a Ground Lease, promptly
(and in any event within 45 days) after the Closing Date notify the related
ground lessor of the transfer of such Serviced Loan to the Trust pursuant to
this Agreement and inform such ground lessor that any notices of default under
the related Ground Lease should thereafter be forwarded to the Master Servicer.
(k) Except as required under the loan documents, Mezzanine
Intercreditor Agreement or applicable law and subject to Section 3.21(f), the
Special Servicer shall not, without the consent of the Directing
Certificateholder, consent to the foreclosure of any Mezzanine Loan or to the
transfer of any Mezzanine Loan.
(l) With respect to the Torre Mayor Pari Passu Note A-2 Mortgage
Loan, the Master Servicer shall provide the related Mortgage Loan Seller with
notice of any failure of the related Mortgagor to make Mexico Gross-Up Payments,
within 10 days of the date when such payments are due.
Section 3.20 Modifications, Waivers, Amendments and Consents.
(a) The Master Servicer (solely as to Performing Serviced Loans) and
the Special Servicer (as to Specially Serviced Loans) each may, consistent with
the Servicing Standard, agree to any modification, waiver or amendment of any
term of, forgive or defer the payment of interest (including, without
limitation, Default Interest and Excess Interest) on and principal of, forgive
late payment charges and Prepayment Premiums on, permit the release, addition or
substitution of collateral securing, and/or permit the release of the Mortgagor
on or any guarantor of any Serviced Loan it is required to service and
administer hereunder without the consent of the Trustee or any
Certificateholder, subject, however, to Section 3.02, Section 3.08, Section 3.21
and Section 3.28 and each of the following limitations, conditions and
restrictions:
(i) other than as provided in Sections 2.03(b), 3.02, 3.08 and
3.20(f), the Master Servicer shall not agree to any modification, waiver
or amendment of any term of, or take any of the other acts referenced in
this Section 3.20(a) with respect to, any Serviced Loan, that would affect
the amount or timing of any related payment of principal, interest or
other amount payable under such Serviced Loan or affect the security for
such Serviced Loan, unless the Master Servicer has obtained the consent of
the Special Servicer (it being understood and agreed that (A) the Master
Servicer shall promptly provide the Special Servicer with notice of any
Mortgagor's request for such modification, waiver or amendment, the Master
Servicer's recommendations and analysis, and with all information
reasonably available to the Master Servicer that the Special Servicer may
reasonably request to withhold or grant any such consent, each of which
shall be provided reasonably promptly in accordance with the Servicing
Standard, (B) the Special Servicer shall decide whether to withhold or
grant such consent in accordance with the Servicing Standard and (C) if
any such request has not been expressly responded to within ten Business
Days (subject to any extensions of applicable time periods required if the
Special Servicer is required by this Agreement to seek the consent of
third parties) of the Special Servicer's receipt from the Master Servicer
of the Master Servicer's recommendations and analysis and all information
reasonably requested thereby and reasonably available to the Master
Servicer, as such time period may be extended if the Special Servicer is
required to seek the consent of the Directing Certificateholder, any
Controlling Holder, any mezzanine lender, or the Rating Agencies, to make
an informed decision (or, if the Special Servicer did not request any
information, within ten Business Days from such notice), such consent
shall be deemed to have been granted);
(ii) Subject to the restrictions on extensions in Section
3.20(a)(iv), the Master Servicer may (with the consent of the Directing
Certificateholder, subject, however, to Section 3.21(f)) extend the
maturity date of any Mortgage Loan (including any Serviced 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 Serviced
Loan, consent to the Master Servicer's agreeing to) any modification,
waiver or amendment of any term of, or take (or, in the case of a
Performing Serviced Loan, consent to the Master Servicer's taking) any of
the other acts referenced in this Section 3.20(a) with respect to, any
Serviced Loan that would affect the amount or timing of any related
payment of principal, interest or other amount payable thereunder or, in
the reasonable, good faith judgment of the Special Servicer, would add to,
release, substitute for, or otherwise alter a material amount of the
security for such Serviced Loan, unless a material default on such
Serviced Loan has occurred or, in the reasonable, good faith judgment of
the Special Servicer, a default in respect of payment on such Serviced
Loan is reasonably foreseeable, and such modification, waiver, amendment
or other action is reasonably likely to produce a greater recovery to the
Certificateholders, or if a Serviced Whole Loan is affected, to the
Certificateholders and the related Companion Loan Holder(s) (as a
collective whole taking into account the subordination of any related
Subordinate Interest(s)) on a net present value basis than would
liquidation;
(iv) the Special Servicer shall not extend (or, in the case of a
Performing Serviced Loan, consent to the Master Servicer's extending) the
date on which any Balloon Payment is scheduled to be due on any Serviced
Loan to a date beyond the earliest of (A) five years prior to the Rated
Final Distribution Date, and (B) if such Serviced Loan is secured by a
Mortgage solely or primarily on the related Mortgagor's leasehold interest
in the related Mortgaged Property, 20 years (or, to the extent consistent
with the Servicing Standard, giving due consideration to the remaining
term of the Ground Lease, ten years) prior to the end of the then current
term of the related Ground Lease (plus any unilateral options to extend);
(v) neither the Master Servicer nor the Special Servicer shall make
or permit any modification, waiver or amendment of any term of, or take
any of the other acts referenced in this Section 3.20(a) with respect to,
any Serviced Loan that would result in an Adverse REMIC Event with respect
to any of the Torre Mayor Loan REMIC, REMIC I or REMIC II;
(vi) subject to applicable law, the related loan documents and the
Servicing Standard, neither the Master Servicer nor the Special Servicer
shall permit any modification, waiver or amendment of any term of any
Serviced Loan unless all related fees and expenses are paid by the related
Mortgagor;
(vii) the Special Servicer shall not permit (or, in the case of a
Performing Serviced Loan, consent to the Master Servicer's permitting) any
Mortgagor to add or substitute any real estate collateral for its Serviced
Loan unless the Special Servicer shall have first determined in its
reasonable, good faith judgment, based upon a Phase I Environmental
Assessment (and any additional environmental testing that the Special
Servicer deems necessary and prudent) conducted by an Independent Person
who regularly conducts Phase I Environmental Assessments, at the expense
of the Mortgagor, that such additional or substitute collateral is in
compliance with applicable environmental laws and regulations and that
there are no circumstances or conditions present with respect to such new
collateral relating to the use, management or disposal of any Hazardous
Materials for which investigation, testing, monitoring, containment,
clean-up or remediation would be required under any then applicable
environmental laws or regulations; and
(viii) the Special Servicer shall not permit the release, including
in connection with a substitution contemplated by clause (vii) above, any
collateral securing an outstanding Serviced Loan, except as provided in
Section 3.09(d) or Section 3.26, or except where a Serviced Loan (or, in
the case of a Cross-Collateralized Group, where such entire
Cross-Collateralized Group) is satisfied, or except in the case of a
release where (A) either (1) the use of the collateral to be released will
not, in the good faith and reasonable judgment of the Special Servicer,
materially and adversely affect the net operating income being generated
by or the use of the related Mortgaged Property, or (2) there is a
corresponding principal pay down of such Serviced Loan in an amount at
least equal to the appraised value of the collateral to be released (or
substitute collateral with an appraised value at least equal to that of
the collateral to be released, is delivered), (B) the remaining Mortgaged
Property (together with any substitute collateral) is, in the Special
Servicer's good faith and reasonable judgment, adequate security for the
remaining Serviced Loan and (C) such release would not, in and of itself,
result in an Adverse Rating Event with respect to any Class of Rated
Certificates (as confirmed in writing to the Trustee by each Rating
Agency);
provided that the limitations, conditions and restrictions set forth in clauses
(i) through (vii) above shall not apply to any act or event (including, without
limitation, a release, substitution or addition of collateral) in respect of any
Serviced Loan that either occurs automatically, or results from the exercise of
a unilateral option by the related Mortgagor within the meaning of Treasury
Regulations Section 1.1001-3(c)(2)(iii), in any event under the terms of such
Serviced Loan in effect on the Closing Date (or, in the case of a Replacement
Mortgage Loan, on the related date of substitution); and provided, further,
that, notwithstanding clauses (i) through (vii) above, neither the Master
Servicer nor the Special Servicer shall be required to oppose the confirmation
of a plan in any bankruptcy or similar proceeding involving a Mortgagor if, in
its reasonable, good faith judgment, such opposition would not ultimately
prevent the confirmation of such plan or one substantially similar; and
provided, further, that, notwithstanding clause (vii) above, neither the Master
Servicer nor the Special Servicer shall be required to obtain any confirmation
of the Certificate ratings from the Rating Agencies to grant, or to subordinate
the lien of Loans to, easements, rights-of-way or similar agreements that do not
materially affect the use or value of a Mortgaged Property or the Mortgagor's
ability to make any payments with respect to the related Loan.
(b) Neither the Master Servicer nor the Special Servicer shall have
any liability to the Trust, the Certificateholders and in the case of a Serviced
Whole Loan, the related Companion Loan Holder(s) 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 Serviced Whole Loan is affected, to the
Certificateholders and the related Companion Loan Holder(s) (as a collective
whole taking into account the subordination of any related Subordinate
Interest(s)) 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(s) (if a Serviced Whole Loan is involved). The
Special Servicer shall include with any such Officer's Certificate the
supporting documentation forming the basis for its conclusion.
(c) Any payment of interest that is deferred pursuant to Section
3.20(a) shall not, for purposes hereof, including, without limitation,
calculating monthly distributions to Certificateholders, be added to the unpaid
principal balance or Stated Principal Balance of the related Serviced Loan,
notwithstanding that the terms of such Serviced Loan so permit or that such
interest may actually be capitalized.
(d) The Master Servicer (as to Performing Serviced Loans) and the
Special Servicer (as to Specially Serviced Loans) each may, as a condition to
its granting any request by a Mortgagor for consent, modification, waiver or
indulgence or any other matter or thing, the granting of which is within the
Master Servicer's or Special Servicer's, as the case may be, discretion pursuant
to the terms of the instruments evidencing or securing the related Serviced Loan
and is permitted by the terms of this Agreement, require that such Mortgagor pay
to it, as additional servicing compensation, a reasonable fee relating to such
consent, modification, waiver or indulgence (not to exceed 1.0% of the unpaid
principal balance of the related Serviced Loan) for the additional services
performed in connection with such request, together with any related costs and
expenses incurred by it; provided that the charging of such fees would not
otherwise constitute a "significant modification" of the Serviced Loan pursuant
to Treasury Regulations Section 1.860G-2(b). All such fees collected by the
Master Servicer and/or the Special Servicer shall be allocable between such
parties, as Additional Master Servicing Compensation and Additional Special
Servicing Compensation, respectively, as provided in Section 3.11.
(e) All modifications, waivers, amendments and other actions entered
into or taken in respect of the Serviced Loans pursuant to the preceding
subsections of this Section 3.20 shall be in writing. Each of the Master
Servicer and the Special Servicer shall notify the other such party, the
Trustee, the Directing Certificateholder and the related Companion Loan
Holder(s) (if a Serviced Whole Loan is involved), in writing, of any
modification, waiver, amendment or other action entered into or taken in respect
of any Serviced Loan pursuant to this Section 3.20 and the date thereof, and
shall deliver to the Trustee or the related Custodian for deposit into the
related Mortgage File (with a copy to the other such party), an original
counterpart of the agreement relating to such modification, waiver, amendment or
other action, promptly (and in any event within ten Business Days) following the
execution thereof. In addition, following the execution of any modification,
waiver or amendment agreed to by the Special Servicer pursuant to Section
3.20(a) above, the Special Servicer shall deliver to the Master Servicer and the
Trustee an Officer's Certificate setting forth in reasonable detail the basis of
the determination made by it pursuant to clause (ii) of Section 3.20(a).
(f) With respect to any ARD Loan after its Anticipated Repayment
Date, the Master Servicer shall be permitted to waive all or any accrued Excess
Interest if, prior to the related maturity date, the related Mortgagor has
requested the right to prepay the Loan in full together with all payments
required by the Serviced Loan in connection with such prepayment except for all
or a portion of accrued Excess Interest; provided, that the Master Servicer's
determination to waive the right to such accrued Excess Interest is reasonably
likely to produce a greater payment to Certificateholders on a net present value
basis than a refusal to waive the right to such Excess Interest. Any such waiver
shall not be effective until such payment is tendered. The Master Servicer shall
have no liability to the Trust, the Certificateholders or any other person so
long as such determination is based on such criteria. Notwithstanding anything
contained in this Agreement to the foregoing, the Master Servicer shall be
required to seek the consent of the Directing Certificateholder and provide to
the Directing Certificateholder any information that the Directing
Certificateholder may reasonably request in order to grant or deny its consent,
provided that such information is in the possession of the Master Servicer,
prior to waiving any Excess Interest. The Directing Certificateholder's consent
to a waiver shall be deemed granted if the Directing Certificateholder fails to
respond to such request within ten Business Days of its receipt of such request.
Except as permitted in Section 3.20(a), the Special Servicer shall have no right
to waive the payment of Excess Interest.
(g) The Master Servicer shall not be required to seek the consent of
the Special Servicer or any Certificateholder or obtain any confirmation of the
Certificate ratings from the Rating Agencies (unless otherwise set forth in the
related Intercreditor Agreement with respect to a Serviced Whole Loan) to
approve the following modifications, waivers or amendments of the Loans (other
than any Non-Serviced Mortgage Loan): (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 (other than any Non-Serviced Mortgage Loan) in accordance with Section
3.20(a), the Special Servicer, in the case of a Specially Serviced Loan, and the
Master Servicer, in the case of a Performing Serviced Loan, shall each cause the
related Mortgagor to agree, if it has not already done so pursuant to the
existing Loan documents, to thereafter deliver to the Special Servicer, the
Trustee, the Directing Certificateholder and the related Companion Loan
Holder(s) (if a Serviced Whole Loan is involved), audited operating statements
on a quarterly basis with respect to the related Mortgaged Property, provided
that the Special Servicer or the Master Servicer, as the case may be, may, in
its sole discretion, waive the requirement that such statements be audited.
(i) If the Master Servicer or the Special Servicer collects a
modification fee or a modification application fee in connection with a
modification or proposed modification of a Serviced Loan, then the Master
Servicer or the Special Servicer, as applicable, will apply that fee to cover
the costs and expenses associated with that modification or proposed
modification that are not otherwise paid by the related Mortgagor and that would
otherwise be payable or reimbursable out of the Trust Fund, including any Rating
Agency fees and expenses. Any remaining portion of such modification fee (such
remaining portion, a "Net Modification Fee") or of such modification application
fee (such remaining portion, a "Net Modification Application Fee") will be
applied as additional compensation to the Master Servicer or the Special
Servicer in accordance with Section 3.11.
Section 3.21 Transfer of Servicing Between Master Servicer and
Special Servicer; Record Keeping; Asset Status Report; Directing
Certificateholder.
(a) Upon determining that a Servicing Transfer Event has occurred
with respect to any Serviced Loan, the Master Servicer shall immediately give
notice thereof to the Directing Certificateholder and the related Companion Loan
Holder(s) (if a Serviced Whole Loan is involved), and deliver the related
Servicing File to the Special Servicer and shall use its best efforts to provide
the Special Servicer with all information, documents (or copies thereof) and
records (including records stored electronically on computer tapes, magnetic
discs and the like) relating to the Serviced Loan and reasonably requested by
the Special Servicer to enable it to assume its functions hereunder with respect
thereto without acting through a Sub-Servicer. Notwithstanding anything in
Section 2.01(b) or any other provision of this Agreement to the contrary, the
copying and delivery of such documents, instruments, items, records and
information shall not be at the expense of the Special Servicer. At its option,
although its Sub-Servicing Agreement is temporarily suspended, the related
Sub-Servicer, without any compensation therefor, may retain Loans on its
computer systems while such Loans are Specially Serviced Loans, provided that no
Sub-Servicer shall take any action with respect thereto so long as such Loan is
a Specially Serviced Loan and provided that the Master Servicer shall assume all
the Master Servicing duties with respect to that Loan as provided in the second
succeeding paragraph. The Master Servicer shall use its best efforts to comply
with the third preceding sentence within five Business Days of the occurrence of
each related Servicing Transfer Event. The Master Servicer shall deliver to each
Holder of a Non-Registered Certificate (except a Class V, Class R-I, Class R-II
or Class R-TM Certificate) that shall have requested a copy of any such notice a
copy of the notice of such Servicing Transfer Event provided by the Master
Servicer to the Special Servicer pursuant to this Section. No later than ten
Business Days before the Master Servicer is required to deliver a copy of the
related Servicing File to the Special Servicer, it shall review the Servicing
File and request from the Trustee any material documents that it is aware are
missing from the Servicing File. If the related Sub-Servicer elects not to
retain Specially Serviced Loans on its computer systems, then such Sub-Servicer
shall return all Mortgage Files to the Master Servicer.
Upon determining that a Specially Serviced Loan has become a
Corrected Serviced Loan, the Special Servicer shall promptly give notice thereof
to the Master Servicer and to the Directing Certificateholder and the related
Companion Loan Holder(s) (if a Serviced Whole Loan is involved), and return the
related Servicing File to the Master Servicer within five Business Days and upon
giving such notice and returning such Servicing File, to the Master Servicer,
the Special Servicer's obligation to service such Loan, and the Special
Servicer's right to receive the Special Servicing Fee with respect to such Loan,
shall terminate, and the obligations of the Master Servicer to service and
administer such Loan shall resume.
Notwithstanding other provisions in this Agreement to the contrary,
the Master Servicer shall remain responsible for the accounting, data
collection, reporting and other basic Master Servicer administrative functions
with respect to the Specially Serviced Loans, provided that the Master Servicer
shall establish reasonable procedures as to the application of Special Servicer
receipts and tendered payments, and the Special Servicer shall have the
exclusive responsibility for and authority over all contacts (including
collection, which information shall be provided by the Master Servicer) with and
notices to Mortgagors and similar matters relating to each Specially Serviced
Loan and the related Mortgaged Property.
Also notwithstanding anything herein to the contrary, in connection
with the transfer to the Special Servicer of the servicing, subject to Section
2.03, of a Cross-Collateralized Mortgage Loan as a result of a Servicing
Transfer Event or the reassumption of servicing responsibilities by the Master
Servicer with respect to any such Serviced Loan upon its becoming a Corrected
Serviced Loan, the Master Servicer and the Special Servicer shall each transfer
to the other, as and when applicable, the servicing of all other
Cross-Collateralized Mortgage Loans constituting part of the same
Cross-Collateralized Group; provided that no Cross-Collateralized Mortgage Loan
may become a Corrected Serviced Loan at any time that a continuing Servicing
Transfer Event exists with respect to another Cross-Collateralized Mortgage Loan
in the same Cross-Collateralized Group.
(b) In servicing any Specially Serviced Loans, the Special Servicer
shall provide to the Trustee the originals, of documents contemplated by the
definition of "Mortgage File" and generated while such Serviced Loan is a
Specially Serviced Loan, for inclusion in the related Mortgage File (with a copy
of each such original to the Master Servicer), and provide to the Master
Servicer copies of any additional related Serviced Loan information, including
correspondence with the related Mortgagor generated while such Serviced Loan is
a Specially Serviced Loan.
(c) Notwithstanding anything in this Agreement to the contrary, in
the event that the Master Servicer and the Special Servicer are the same Person,
all notices, certificates, information, consents and documents required to be
given or delivered by the Master Servicer to the Special Servicer or vice versa
shall be deemed to be given or delivered, as the case may be, without the
necessity of any action on such Person's part.
(d) No later than 45 days after the date the servicing of a Serviced
Loan is transferred from the Master Servicer to the Special Servicer pursuant to
the terms of this Agreement, the Special Servicer shall deliver to each Rating
Agency, the Master Servicer, the Trustee, the related Companion Loan Holder(s)
(if a Serviced Whole Loan is involved), and the Directing Certificateholder a
report (the "Asset Status Report") with respect to such Serviced Loan and the
related Mortgaged Property. Such Asset Status Report shall set forth the
following information to the extent reasonably determinable:
(i) a summary of the status of such Specially Serviced Loan and any
negotiations with the related Mortgagor;
(ii) a discussion of the legal and environmental considerations
reasonably known to the Special Servicer (including without limitation by
reason of any Phase I Environmental Assessment and any additional
environmental testing contemplated by Section 3.09), consistent with the
Servicing Standard, that are applicable to the exercise of remedies set
forth herein and to the enforcement of any related guaranties or other
collateral for the related Serviced Loan and whether outside legal counsel
has been retained;
(iii) the most current rent roll and income or operating statement
available for the related Mortgaged Property;
(iv) the Special Servicer's recommendations on how such Specially
Serviced Loan might be returned to performing status and returned to the
Master Servicer for regular servicing or otherwise realized upon;
(v) the Appraised Value of the Mortgaged Property together with the
assumptions used in the calculation thereof (which the Special Servicer
may satisfy by providing a copy of the last obtained Appraisal); and
(vi) such other information as the Special Servicer deems relevant
in light of the Servicing Standard.
If within ten Business Days of receiving an Asset Status Report, the
Directing Certificateholder (except with respect to a Serviced Whole Loan) or
the related Controlling Holder(s) (if a Serviced Whole Loan is involved and
subject to the related Intercreditor Agreement), does not disapprove such Asset
Status Report in writing, the Special Servicer shall implement the recommended
action as outlined in such Asset Status Report; provided, however, that the
Special Servicer may not take any action that is contrary to applicable law, the
Servicing Standard or the terms of the applicable loan documents; provided,
further that if the Special Servicer determines that the failure to take any
action set forth in such Asset Status Report would violate the Servicing
Standard, the Special Servicer may implement the recommended action outlined in
such Asset Status Report without waiting for the Directing Certificateholder's
or the related Controlling Holder(s)' (if a Serviced Whole Loan is involved)
response. If the Directing Certificateholder or the related Controlling
Holder(s) (if a Serviced Whole Loan is involved) disapproves such Asset Status
Report, the Special Servicer will revise such Asset Status Report and deliver to
the Directing Certificateholder, the related Controlling Holder(s) (if a
Serviced Whole Loan is involved), the Rating Agencies, the Trustee and the
Master Servicer a new Asset Status Report as soon as practicable, but no later
than 30 days after such disapproval. The Special Servicer shall revise such
Asset Status Report as described above in this Section 3.21(d) until the earlier
of (x) the delivery by the Directing Certificateholder or the related
Controlling Holder, as applicable, of an affirmative approval in writing of such
revised Asset Status Report, (y) the failure of Directing Certificateholder or
the related Controlling Holder, as applicable, to disapprove such revised Asset
Status Report in writing within ten Business Days of its receipt thereof; or (z)
the passage of 90 days from the date of preparation of the initial version of
the Asset Status Report. Following the earliest of such events, and subject to
the terms of Section 3.20, the Special Servicer shall implement the recommended
action as outlined in the most recent version of such Asset Status Report
(provided that the Special Servicer shall not take any action that is contrary
to applicable law or the terms of the applicable loan documents or that violates
the Servicing Standard or fail to take any action, if the failure to take such
action would violate the Servicing Standard). The Special Servicer may, from
time to time, modify any Asset Status Report it has previously delivered and
implement the new action in such revised report so long as such revised report
has been prepared, reviewed and either approved or not rejected as provided
above. For the avoidance of doubt, any action to be taken (or not taken) by the
Special Servicer with respect to an Asset Status Report must be in all respects
consistent with the Servicing Standard and applicable law. The Special Servicer
shall have the authority to meet with the Mortgagor for any Specially Serviced
Loan and take such actions consistent with the Servicing Standard and the
related Asset Status Report. The Special Servicer shall not take any action
inconsistent with the related Asset Status Report, unless such action would be
required to act in accordance with the Servicing Standard.
(e) The Special Servicer or the Master Servicer, as applicable,
shall provide the Directing Certificateholder and the related Companion Loan
Holder(s) (if a Serviced Whole Loan is involved), with not less than ten
Business Days' prior notice (except as provided in Section 3.08(a)) of any
Special Action (as described below) that the Special Servicer or the Master
Servicer, as applicable, proposes to take and, in the case of the Special Action
described in clause (vi) below, the Special Servicer shall also
contemporaneously notify the Master Servicer; provided, however, that if a
shorter period of notice is necessary to avoid the occurrence of an Adverse
REMIC Event or a violation of Section 3.21(f), then the required period of
notice shall be such shorter period.
The Directing Certificateholder (with respect to the Serviced Loans
(other than a Serviced Whole Loan) and the related Controlling Holder (with
respect to the related Serviced Whole Loan) shall be entitled to advise the
Special Servicer with respect to any Special Action, and notwithstanding
anything to the contrary contained herein, the Special Servicer shall not take
any Special Action or consent to the taking of any Special Action if the
Directing Certificateholder (with respect to the Serviced Loans (other than a
Serviced Whole Loan) and the related Controlling Holder (with respect to the
related Serviced Whole Loan), as applicable, has objected thereto by the close
of business on the tenth Business Day following its receipt of notice thereof,
or if a shorter period was necessitated in accordance with the preceding
sentence, by the close of business on the date on which such shorter period
expires (it being understood that the failure of the Directing Certificateholder
or the related Controlling Holder, as applicable, to respond in the time frame
set forth in the Approval Provisions shall be deemed to constitute such party's
approval of such action); provided, however, that (x) the ability of the
Directing Certificateholder or the related Controlling Holder (if a Serviced
Whole Loan is involved), as applicable, to so advise or object shall in all
events be subject to Section 3.21(f) and shall not violate the provisions of the
Mezzanine Intercreditor Agreement (with respect to any Mortgage Loan with a
related Mezzanine Loan), (y) the Master Servicer or the Special Servicer, as
applicable, shall not follow any such advice or objection that would result in a
violation of this Agreement, including Section 3.21(f), the loan documents, any
Intercreditor Agreement or applicable laws or otherwise result in an Adverse
REMIC Event or violate the provisions of the Mezzanine Intercreditor Agreement
(with respect to any Mortgage Loan with a related Mezzanine Loan) and (z) if (a)
the Directing Certificateholder or the related Controlling Holder (if a Serviced
Whole Loan is involved), as applicable, (b) the Special Servicer or Master
Servicer, as applicable, together cannot agree within 10 Business Days upon a
course of action with respect to any Special Action, then the Special Servicer
or Master Servicer, as applicable, shall implement its proposed course of action
and (c) if the Master Servicer or the Special Servicer determines that immediate
action is necessary in accordance with the Servicing Standard, it may take such
action prior to the expiration of the ten Business Day period. Subject to the
foregoing, in connection with the implementation of any Special Action or the
extension of the maturity date of a Serviced Loan, the Master Servicer or
Special Servicer shall comply with the Approval Provisions, as applicable. For
purposes hereof, "Special Action" means each of the following actions:
(i) any proposed or actual foreclosure upon or comparable conversion
(which may include acquisitions of an REO Property) of the ownership of
properties securing such of the Specially Serviced Loans as come into and
continue in default;
(ii) any modification or waiver of a Loan;
(iii) any proposed or actual sale of a Defaulted Serviced Loan or
REO Property (other than in connection with the termination of the Trust
Fund or pursuant to Section 3.18);
(iv) any determination to bring an REO Property into compliance with
applicable environmental laws or to otherwise address Hazardous Materials
located at an REO Property;
(v) any acceptance of substitute or additional collateral for a Loan
unless the lender is required to accept such collateral by the underlying
loan documents and any release of the real estate collateral securing the
Loan (except as permitted by clause (ii) of Section 3.20(g));
(vi) any waiver of a "due-on-sale" clause (except as set forth in
Section 3.08(a)) or "due-on-encumbrance" clause;
(vii) any acceptance or approval of acceptance or consent to
acceptance of an assumption agreement releasing a borrower from liability
under a Serviced Loan (except as set forth in Section 3.08(a));
(viii) any acceptance of a discounted payoff of a Mortgage Loan;
(ix) any release of earnout reserve funds (other than as expressly
required, with no lender discretion and/or is automatic, under the related
loan documents);
(x) the release of any letters of credit (other than as expressly
required, with no lender discretion and/or is automatic, under the related
loan documents);
(xi) any approval of a material lease (in excess of 20% of the
leasable space) (other than as expressly required, with no lender
discretion and/or is automatic, under the related loan documents); or
(xii) any change in property manager or franchise (other than as
expressly required, with no lender discretion and/or is automatic, under
the related loan documents).
(f) Notwithstanding anything contained in this Agreement to the
contrary, (i) no objection, failure to approve or direction of the Directing
Certificateholder or any Controlling Holder (if a Serviced Whole Loan is
involved), as applicable, shall (A) require or cause the Master Servicer or the
Special Servicer, as applicable, to violate the terms of any Loan then serviced
by it, applicable law or any provision of this Agreement, including the Master
Servicer's obligation or the Special Servicer's obligation to act in accordance
with the Servicing Standard and to maintain the REMIC status of each of the
Torre Mayor Loan REMIC, REMIC I and REMIC II, or (B) result in the imposition of
a "prohibited transaction" or "prohibited contribution" tax under the REMIC
Provisions, or (C) expose the Master Servicer, the Special Servicer, the
Depositor, the Trust Fund, the Trustee or their officers, directors, employees
or agents to any claim, suit or liability, or (D) materially expand the scope of
the Special Servicer's or the Master Servicer's responsibilities under this
Agreement (the "Prohibited Actions"), and (ii) in no event shall the Master
Servicer or the Special Servicer take any action or refrain from taking any
action if the taking of such action or the refraining from taking of such action
would violate the Servicing Standard or the REMIC Provisions. The Master
Servicer or Special Servicer, as applicable, shall disregard any such direction,
failure to approve or objection.
The Directing Certificateholder shall have no liability to the
Certificateholders other than the Holders of the Controlling Class, and shall
have no liability 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
or any Controlling Holder, as applicable, 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 or any Controlling Holder, as applicable,
may take actions that favor the interests of one or more Classes of the
Certificates over other Classes of the Certificates, and that the Directing
Certificateholder or any Controlling Holder, as applicable, may have special
relationships and interests that conflict with those of Holders of some Classes
of the Certificates, that the Directing Certificateholder or any Controlling
Holder, as applicable, may act solely in the interests of the Holders of the
Controlling Class, that none of the Directing Certificateholder or any
Controlling Holder, as applicable, has any duties to the Holders of any Class of
Certificates other than the Controlling Class, that none of the Directing
Certificateholder or any Controlling Holder, as applicable, shall be deemed to
have been negligent or reckless, or to have acted in bad faith or engaged in
willful misfeasance, by reason of its having acted solely in the interests of
the Holders of the Controlling Class or any Controlling Holder, as applicable,
that none of the Directing Certificateholder or any Controlling Holder, as
applicable, shall have any liability whatsoever for having so acted, and no
Certificateholder may take any action whatsoever against the Directing
Certificateholder or any Controlling Holder, as applicable, 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 related Controlling Holder such summary
and such information as is in its possession or control and is reasonably
requested by the related Controlling Holder as may be necessary in the
reasonable judgment of the related Controlling Holder in order to make a
determination with respect to such Special Action.
The Master Servicer or Special Servicer shall provide to each
related Companion Loan Holder by hard copy or by electronic means concurrently
with the delivery thereof to the related Borrower, copies of any notice of an
event of default under the related Mortgage 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
each related Companion Loan Holder by hard copy, electronic means or by other
means agreed to by such Companion Loan Holder and the Master Servicer or the
Special Servicer (A) within 30 days of receipt thereof, copies of any financial
statements, certificates, correspondence, notices, bills or reports with respect
to the related Borrower or Mortgaged Property that were delivered pursuant to,
or to which the mortgagee or lender would be entitled to under, the terms of the
related Mortgage 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 related Companion Loan Holder 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 other than
with respect to the Cayman Islands Mortgage Loan which does not require consent)
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
Serviced Whole Loan is involved, the related Companion Loan Holder(s), is
consistent with this Agreement in all material respects; (ii) expressly or
effectively provides that if the Master Servicer or Special Servicer, as the
case may be, shall for any reason no longer act in such capacity hereunder
(including, without limitation, by reason of an Event of Default), any successor
to the Master Servicer or the Special Servicer, as the case may be, hereunder
(including the Trustee if the Trustee has become such successor pursuant to
Section 7.02) may thereupon either assume all of the rights and, except to the
extent they arose prior to the date of assumption, obligations of the Master
Servicer or Special Servicer, as the case may be, under such agreement or,
except with respect to those Sub-Servicing Agreements listed on Schedule II and
subject to the provisions of Section 3.22(d), terminate such rights and
obligations; (iii) in the case of a Sub-Servicing Agreement entered into by the
Master Servicer, expressly or effectively provides that such agreement shall be
suspended with respect to any Serviced Loan serviced thereunder at the time such
Serviced Loan becomes a Specially Serviced Loan unless such Serviced Loan is
then sub-serviced by Midland Loan Services, Inc. or its permitted successors and
assigns pursuant to such Sub-Servicing Agreement (but only until such time as
such Serviced Loan becomes a Corrected Serviced Loan); (iv) in the case of a
Sub-Servicing Agreement entered into by the Special Servicer, relates only to
Specially Serviced Loans or REO Properties and expressly or effectively provides
that such agreement shall terminate with respect to any such Serviced Loan that
becomes a Corrected Serviced Loan; (v) in the case of a Sub-Servicing Agreement
entered into by the Master Servicer, provides that the related Sub-Servicer
shall comply with all reasonable requests for additional information made by the
Master Servicer (provided, however, that the related Sub-Servicer shall not be
required to furnish the same information to the Master Servicer more than once)
and, further, provides that the failure of the related Sub-Servicer to furnish
the Master Servicer on a timely basis with any required reports, statements or
other information, including without limitation, the reports referred to in
Section 3.12(a), either (A) shall permit the Master Servicer to make necessary
inquiries of the related borrower directly or (B) shall (subject to a cure
period not to exceed 60 days) constitute an event of default thereunder for
which the Master Servicer may terminate such Sub-Servicer without payment of any
termination fee (it being understood that notwithstanding anything to the
contrary in this clause (v), the obligations of a Sub-Servicer in respect of the
second sentence of Section 3.12(b) may be limited to the provision of reports as
agreed between the Master Servicer and such Sub-Servicer and response to
reasonable inquiries from the Master Servicer with respect thereto); (vi)
subject to Section 3.08 and Section 3.20(g), does not authorize any Sub-Servicer
to approve a modification or assumption of any Serviced Loan without the
approval of the Master Servicer, in the case of Performing Serviced Loans or of
the Special Servicer, in the case of Specially Serviced Loans or authorizes the
Sub-Servicer to foreclose any Serviced Loan without the approval of the Special
Servicer; (vii) imposes no liability whatsoever on the Trustee or the
Certificateholders or in the case of a Serviced Whole Loan, the related
Companion Loan Holder, with respect to anything contained therein (provided,
that nothing herein shall preclude the Master Servicer or the Special Servicer
from seeking any indemnification that it would be otherwise entitled to under
this Agreement); (viii) provides that the Master Servicer and the Special
Servicer each shall pay the fees of any Sub-Servicer retained by it in
accordance with the respective Sub-Servicing Agreement and, in any event, from
its own funds; and (ix) contain events of default materially similar to an Event
of Default hereunder for the Master Servicer and/or the Special Servicer, as the
case may be. References in this Agreement to actions taken or to be taken by the
Master Servicer or the Special Servicer, as the case may be, include actions
taken or to be taken by a Sub-Servicer on behalf of the Master Servicer or the
Special Servicer, as the case may be; and, in connection therewith, all amounts
advanced by any Sub-Servicer to satisfy the obligations of the Master Servicer
hereunder to make Advances shall be deemed to have been advanced by the Master
Servicer out of its own funds and, accordingly, such Advances shall be
recoverable by such Sub-Servicer in the same manner and out of the same funds as
if such Sub-Servicer were the Master Servicer, and, for so long as they are
outstanding, such Advances shall accrue interest in accordance with Section
3.11(g) and/or Section 4.03(d), such interest to be allocable between the Master
Servicer and such Sub-Servicer as they may agree. For purposes of this
Agreement, the Master Servicer and the Special Servicer each shall be deemed to
have received any payment when a Sub-Servicer retained by it receives such
payment. The Master Servicer and the Special Servicer each shall notify the
other such party, the Trustee, in the case of a Serviced Whole Loan, the related
Companion Loan Holder(s), and the Depositor in writing promptly of the
appointment by it of any Sub-Servicer, and shall deliver to the Trustee copies
of all Sub-Servicing Agreements, and any amendments thereto and modifications
thereof, entered into by it promptly upon its execution and delivery of such
documents.
(b) Each Sub-Servicer actually performing servicing functions (i)
shall be authorized to transact business in the state or states in which the
Mortgaged Properties for the Serviced Loans it is to service are situated, if
and to the extent required by applicable law, and (ii) to the extent
sub-servicing multifamily loans, shall be an approved conventional
seller/servicer of multifamily mortgage loans for Xxxxxxx Mac or Xxxxxx Mae or a
HUD-Approved Servicer.
(c) The Master Servicer and the Special Servicer, for the benefit of
the Trustee and the Certificateholders and, in the case of a Serviced Whole
Loan, the related Companion Loan Holders, shall (at no expense to the Trustee,
the Certificateholders or the Trust or in the case of a Serviced Whole Loan, the
related Companion Loan Holder(s)) each monitor the performance and enforce the
obligations of its Sub-Servicers under the related Sub-Servicing Agreements.
Such enforcement, including, without limitation, the legal prosecution of
claims, termination of Sub-Servicing Agreements in accordance with their
respective terms and the terms of this Agreement, and the pursuit of other
appropriate remedies, shall be in such form and carried out to such an extent
and at such time as the Master Servicer or the Special Servicer, as the case may
be, in its reasonable business judgment, would require were it the owner of the
Serviced Loans. Promptly upon becoming aware of a default under any
Sub-Servicing Agreement to which it is a party, the Master Servicer or the
Special Servicer, as the case may be, shall notify each of the other parties
hereto, the Trustee and the related Companion Loan Holder(s) (if a Serviced
Whole Loan is involved), and then the Trustee shall provide a copy of such
notice to the Directing Certificateholder, and, in accordance with Section
8.12(b), shall, upon request, provide a copy of such notice to each Holder of a
Non-Registered Certificate (except a Class V, Class R-I , Class R-II or Class
R-TM Certificate) of any such default.
(d) With respect to the Sub-Servicing Agreements in effect as of the
Closing Date that are listed on Schedule II, the initial Master Servicer hereby
agrees that it shall not, in its capacity as Master Servicer, terminate any
Sub-Servicer thereunder without cause. In the event of the resignation, removal
or other termination of the initial Master Servicer (or any successor Master
Servicer) hereunder for any reason, the successor to the initial Master Servicer
(or to such successor Master Servicer) shall elect, with respect to any
Sub-Servicing Agreement existing at the time of such termination (i) to assume
the rights and obligations of the predecessor Master Servicer under such
Sub-Servicing Agreement and continue the sub-servicing arrangements thereunder
on the same terms (including without limitation the obligation to pay the same
sub-servicing fees and other compensation), (ii) to enter into a new
Sub-Servicing Agreement with such Sub-Servicer and on such terms as the new
Master Servicer and such Sub-Servicer shall mutually agree (it being understood
that such Sub-Servicer is under no obligation to accept any such new
Sub-Servicing Agreement or to enter into or continue negotiations with the new
Master Servicer) or (iii) except with respect to those Sub-Servicing Agreements
listed on Schedule II, which may only be terminated for cause, to terminate such
Sub-Servicing Agreement without cause provided that such Sub-Servicing
Agreements have events of default that are similar to the Events of Default set
forth in Section 7.01. Nothing in the foregoing provisions of this Section
3.22(d) shall limit the ability of the initial or a successor Master Servicer to
terminate a Sub-Servicer at any time for cause; provided, however, that the
parties hereto understand and agree that the refusal or failure of a
Sub-Servicer to enter into or continue negotiations with a successor Master
Servicer concerning a new Sub-Servicing Agreement shall not constitute cause for
termination. References in this Section 3.22(d) to Master Servicer, successor
Master Servicer or subsequent successor Master Servicer shall mean the Trustee,
if it is then Master Servicer, successor Master Servicer or subsequent Master
Servicer pursuant to the operation of Section 7.02.
(e) In the event the Trustee or its designee assumes the rights and
obligations of the Master Servicer or the Special Servicer under any
Sub-Servicing Agreement, the Master Servicer or the Special Servicer, as the
case may be, at its expense shall, upon request of the Trustee, deliver to the
assuming party all documents and records relating to such Sub-Servicing
Agreement and the Serviced Loans then being serviced thereunder and an
accounting of amounts collected and held on behalf of it thereunder, and
otherwise use its best efforts to effect the orderly and efficient transfer of
the Sub-Servicing Agreement to the assuming party.
(f) Notwithstanding any Sub-Servicing Agreement, the Master Servicer
and the Special Servicer shall each remain obligated and liable to the Trustee
and the Certificateholders for the performance of its obligations and duties
under this Agreement in accordance with the provisions hereof to the same extent
and under the same terms and conditions as if it alone were servicing and
administering the Serviced Loans for which it is responsible.
(g) Notwithstanding anything to the contrary set forth herein, any
account established and maintained by a Sub-Servicer pursuant to a Sub-Servicing
Agreement with the Master Servicer shall for all purposes under this Agreement
be deemed to be an account established and maintained by the Master Servicer.
(h) Each Sub-Servicer pursuant to its related Sub-Servicing
Agreement shall retain the original of any letter of credit that has been issued
in connection with any Serviced Loan that it sub-services pursuant to such
agreement on behalf of the Master Servicer for the benefit of the
Certificateholders provided that it shall provide a copy of such letter of
credit to the Master Servicer.
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
and, if a Serviced Whole Loan is involved, Serviced Companion Loan Securities
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 Serviced Loans it is sub-servicing), a Borrower (with
respect to the related Serviced Loan), any Certificateholder, any Companion Loan
Holder and the Rating Agencies, any information that it obtains in its capacity
as Master Servicer or Special Servicer with respect to the Serviced Loans or any
related Mortgagor including, without limitation, credit information with respect
to any such Mortgagor (collectively, "Confidential Information"), except (i) any
officers, directors and employees of the Master Servicer or Special Servicer (or
any officers, directors and employees of any Affiliates of the Master Servicer
or Special Servicer); (ii) auditors of the Master Servicer or the Special
Servicer and any agents, financial or tax advisors, attorneys, accountants and
professional consultants retained by the Master Servicer or the Special Servicer
in connection with the transactions contemplated by this Agreement that have
been informed of the confidential nature of the information provided to them;
(iii) 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 Controlling Holder (if a Serviced Whole Loan is involved) is required
hereunder) following delivery of request for consent together with any
information reasonably necessary to make a decision and (b) a written
confirmation from each Rating Agency such a change in management, if effected,
would not result in the withdrawal, downgrade or qualification (if applicable)
of the rating of any Class of Certificates and, if a Serviced Whole Loan is
involved, Serviced Companion Loan Securities.
(g) Notwithstanding anything contained in this Section 3.26 the
Master Servicer will disregard any objection of the Directing Certificateholder
or any Controlling Holder (if a Serviced Whole Loan is involved), as applicable,
that would result in a Prohibited Action.
(h) In no event shall the Master Servicer or the Special Servicer
take any action to modify the Torre Mayor Whole Loan or to waive any provision
thereof if the effect would be such that the Torre Mayor Whole Loan would be
defeased before April 1, 2008.
Section 3.27 Application of Default Charges.
(a) Subject to the terms of any applicable Intercreditor Agreement,
any and all Default Charges that are actually received by or on behalf of the
Trust with respect to the Mortgage Pool, shall be applied for the following
purposes and in the following order, in each case to the extent of the remaining
portion of such Default Charges:
first, to pay to the Trustee, the Master Servicer or the Special
Servicer, in that order, any Advance Interest due and owing to such party
on outstanding Advances made thereby with respect to any Mortgage Loan or
REO Serviced Loan in the Mortgage Pool;
second, to reimburse the Trust for any Advance Interest paid to the
Trustee, the Master Servicer or the Special Servicer since the Closing
Date with respect to any Mortgage Loan or REO Serviced Loan in the
Mortgage Pool during the 12-month period preceding the receipt of such
Default Charges, which Advance Interest was paid from a source other than
Default Charges received on the Mortgage Pool;
third, to pay the Special Servicer for any Servicing Advances made
for the cost of an inspection made on a Specially Serviced Loan;
fourth, to reimburse the Trust for any other Additional Trust Fund
Expenses incurred with respect to any Mortgage Loan or REO Serviced Loan
in the Mortgage Pool during the 12-month period prior to the receipt of
such Default Charges, which 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 Serviced Loan,
and otherwise to pay any remaining portion of such Default Charges as
Additional Special Servicing Compensation to the Special Servicer.
(b) Default Charges applied to reimburse the Trust pursuant to
either clause second or clause fourth of Section 3.27(a) is intended to be
available for distribution on the Certificates pursuant to Section 4.01(b),
subject to application pursuant to Section 3.05(a), Section 3.05(b), Section
3.05(c) or Section 3.05(f) for any items payable out of general collections on
the Mortgage Pool. Default Charges applied to reimburse the Trust pursuant to
either clause second or clause fourth of Section 3.27(a) shall be deemed to
offset payments of Advance Interest or other Additional Trust Fund Expenses
(depending on which clause is applicable) in the chronological order in which
they were made or incurred (whereupon such Advance Interest or other Additional
Trust Fund Expenses (depending on which clause is applicable) shall thereafter
be deemed to have been paid out of Default Charges).
(c) Any and all Default Charges that are actually collected with
respect to any Companion Loan or any successor REO Serviced Loan with respect
thereto during any Collection Period (as allocable thereto pursuant to the
related loan agreement), shall be applied for the following purposes and in the
following order, in each case to the extent of the remaining portion of such
Default Charges and net of any portion of such Default Charges, if any, that are
required to be paid to any 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, and to pay any Serviced Companion Loan
Service Provider any interest due and owing such party on any outstanding
principal and/or interest advance under the related Serviced Companion Loan
Securitization Agreement, with respect to any Serviced Loan or REO Serviced Loan
in such Whole Loan or the related REO Mortgaged Property and reimbursed in the
related Collection Period (to be applied with respect to any particular party in
such manner that the interest that accrued first and has been outstanding the
longest shall be paid first); and
Second, to pay any remaining portion of such Default Charges as
Additional Master Servicing Compensation to the Master Servicer, to the extent
received, if they were accrued with respect to such Companion Loan during a
period that it was a Performing Serviced Loan, or as Additional Special
Servicing Compensation to the Special Servicer, to the extent received, if they
were accrued with respect to such Companion Loan during a period that it was a
Specially Serviced Loan or an REO Serviced Loan, in each case pursuant to
Section 3.11.
Section 3.28 Matters Regarding the Whole Loans.
(a) The Companion Loan Holder(s) will not have any liability to the
Trust or the Certificateholders for any action taken, or for refraining from the
taking of any action, in good faith pursuant to this Agreement, or for errors in
judgment; provided, however, that the Companion Loan Holder(s) will not be
protected against any liability which would otherwise be imposed by reason of
willful misfeasance, bad faith or negligence in the performance of duties or by
reason of negligent disregard of duties.
(b) The Companion Loan Holder(s) shall be entitled to receive, upon
request, a copy of any notice or report required to be delivered (upon request
or otherwise) to the Trustee with respect to the related Whole Loan or any
related REO Property by any other party hereto. Any such other party shall be
permitted to require payment of a sum sufficient to cover the reasonable costs
and expenses of providing such copies.
(c) If, pursuant to Section 2.03, Section 3.18 and Section 9.01, the
Mortgage Loan included in a Serviced Whole Loan is purchased or repurchased from
the Trust Fund, the purchaser thereof shall be bound by the terms of the related
Intercreditor Agreement and shall assume the rights and obligations of the
holder of the related Note under the related Intercreditor Agreement. All
portions of the related Mortgage File and other documents pertaining to such
Mortgage Loan shall be endorsed or assigned to the extent necessary or
appropriate to the purchaser of such Mortgage Loan in its capacity as the holder
of the related Note (as a result of such purchase or repurchase), under the
related Intercreditor Agreement in the manner contemplated under such agreement,
which such purchaser shall be deemed to acknowledge. Thereafter, such Mortgage
File shall be held by such purchaser or a custodian appointed thereby for the
benefit of such purchaser, and the other Lenders, as their interests appear
under the related Intercreditor Agreement. If the related Servicing File is not
already in the possession of such party, it shall be delivered to the master
servicer or special servicer, as the case may be, under the separate servicing
agreement for the Serviced Whole Loan.
Section 3.29 Matters Regarding the KinderCare Portfolio Whole Loan
and the Torre Mayor Whole Loan.
(a) In the event that any of the KinderCare Portfolio Trustee, the
KinderCare Portfolio Master Servicer or the KinderCare Portfolio Special
Servicer shall be replaced in accordance with the terms of the KinderCare
Portfolio Pooling Agreement, the Master Servicer and the Special Servicer shall
acknowledge any such successor as the successor to the KinderCare Portfolio
Trustee, the KinderCare Portfolio Master Servicer or the KinderCare Portfolio
Special Servicer, as the case may be, and shall notify the Trustee regarding
such replacement.
(b) The Master Servicer shall deliver, or cause to be delivered, to
the Trustee, promptly following receipt from the KinderCare Portfolio Master
Servicer, the KinderCare Portfolio Special Servicer or the KinderCare Portfolio
Trustee, any servicing reports concerning the KinderCare Portfolio Mortgage
Loan.
(c) If, pursuant to Section 2.03, Section 3.18 or Section 9.01, the
KinderCare Portfolio Pari Passu Note A-2 Mortgage Loan is purchased or
repurchased from the Trust Fund, the purchaser thereof shall be bound by the
terms of the KinderCare Portfolio Intercreditor Agreement and shall assume the
rights and obligations of the "Note X-0 Xx-Xxxxxx" under the KinderCare
Portfolio Intercreditor Agreement. All portions of the related Mortgage File and
other documents pertaining to the KinderCare Portfolio Pari Passu Note A-2
Mortgage Loan shall be endorsed or assigned to the extent necessary or
appropriate to the purchaser of such Mortgage Loan in its capacity as "Note X-0
Xx-Xxxxxx" (as a result of such purchase or repurchase), under the KinderCare
Portfolio Intercreditor Agreement in the manner contemplated under such
agreement, which such purchaser shall be deemed to acknowledge. Thereafter, such
Mortgage File shall be held by the "Note X-0 Xx-Xxxxxx" or a custodian appointed
thereby for the benefit of the "Note X-0 Xx-Xxxxxx" and the other Lenders or
"Co-Lender", as the case may be, as their interests appear under the KinderCare
Portfolio Intercreditor Agreement. If the related Servicing File is not already
in the possession of such party, it shall be delivered to the master servicer or
special servicer, as the case may be, under the separate servicing agreement for
the KinderCare Portfolio Whole Loan.
(d) In the event that any of the Torre Mayor Trustee, the Torre
Mayor Master Servicer or the Torre Mayor Special Servicer shall be replaced in
accordance with the terms of the Torre Mayor Pooling Agreement, the Master
Servicer and the Special Servicer shall acknowledge any such successor as the
successor to the Torre Mayor Trustee, the Torre Mayor Master Servicer or the
Torre Mayor Special Servicer, as the case may be, and shall notify the Trustee
regarding such replacement.
(e) The Master Servicer shall deliver, or cause to be delivered, to
the Trustee, promptly following receipt from the Torre Mayor Master Servicer,
the Torre Mayor Special Servicer or the Torre Mayor Trustee, any servicing
reports concerning the Torre Mayor Mortgage Loan.
(f) If, pursuant to Section 2.03, Section 3.18 or Section 9.01, the
Torre Mayor Pari Passu Note A-2 Mortgage Loan is purchased or repurchased from
the Trust Fund, the purchaser thereof shall be bound by the terms of the Torre
Mayor Intercreditor Agreements and shall assume the rights and obligations of
the "Co-Lender" under the Torre Mayor A Notes Intercreditor Agreement. All
portions of the related Mortgage File and other documents pertaining to the
Torre Mayor Pari Passu Note A-2 Mortgage Loan shall be endorsed or assigned to
the extent necessary or appropriate to the purchaser of such Mortgage Loan in
its capacity as "Co-Lender" (as a result of such purchase or repurchase), under
the Torre Mayor A Notes Intercreditor Agreement in the manner contemplated under
such agreement, which such purchaser shall be deemed to acknowledge. Thereafter,
such Mortgage File shall be held by the "Co-Lender" or a custodian appointed
thereby for the benefit of the " Co-Lender". If the related Servicing File is
not already in the possession of such party, it shall be delivered to the master
servicer or special servicer, as the case may be, under the separate servicing
agreement for the Torre Mayor Whole Loan.
Section 3.30 Certain Powers of the Controlling Holders and Certain
Intercreditor Matters.
(a) The related Controlling Holder shall not owe any fiduciary duty
to the Trustee, the Master Servicer, the Special Servicer or any
Certificateholder. The related Controlling Holder will not have any liability to
the Certificateholders for any action taken, or for refraining from the taking
of any action or the giving or withholding of any consent, pursuant to this
Agreement, or for errors in judgment. By its acceptance of a Certificate, each
Certificateholder confirms its understanding that the related Controlling Holder
may take or refrain from taking actions that favor the interests of one or more
Classes of the Certificates over other Classes of the Certificates, and that the
related Controlling Holder may have special relationships and interests that
conflict with those of Holders of some Classes of the Certificates, that the
related Controlling Holder does not have any duties to the Holders of any Class
of Certificates, and that the related Controlling Holder shall have no liability
whatsoever for having so acted, and no Certificateholder may take any action
whatsoever against the related Controlling Holder or any director, officer,
employee, agent or principal thereof for having so acted.
(b) Notwithstanding anything in this Agreement to the contrary, with
respect to each Serviced Whole Loan, the related Controlling Holder, in lieu of
the Directing Certificateholder, shall be entitled to exercise all rights of the
Directing Certificateholder under this Agreement with respect to the related
Serviced Whole Loan, as applicable, and any references to the Directing
Certificateholder in this Agreement relating to actions permitted to be taken
only with the consent of the Directing Certificateholder with respect to such
Serviced Whole Loan shall be deemed to be references to the related Controlling
Holder; provided, however, that (i) the Directing Certificateholder shall also
have the right to receive all reports and notices under this Agreement (which
shall not be an expense of the related Controlling Holder), (ii) the Directing
Certificateholder shall also have the right to consult with the Special Servicer
(on a non-binding basis) regarding such Serviced Whole Loan, (iii) the Directing
Certificateholder (and not the related Controlling Holder) shall be entitled to
exercise the Purchase Option set forth in Section 3.18(c) with respect to such
Serviced Whole Loan and (iv) the related Controlling Holder shall not be
entitled to terminate the Special Servicer. In addition, the applicable
Controlling Holder shall have any rights, whether or not additional, that are
specified in the related Intercreditor Agreement.
(c) Within five Business Days of receipt of written notice that a
new related Controlling Holder has been selected, the Trustee shall deliver
notice to the Master Servicer and the Special Servicer, of such related
Controlling Holder's identity.
(d) With respect to each Serviced Whole Loan, notwithstanding
anything to the contrary contained herein, the related Controlling Holder shall
have the right to cure monetary and non-monetary defaults by the related
Borrower as provided in the related Intercreditor Agreement.
Section 3.31 Matters Regarding the Torre Mayor Pari Passu Note A-2
Mortgage Loan and the Cayman Islands Mortgage Loan.
(a) Upon the enactment of Mexican tax legislation that would trigger
a Mexico Gross-Up Payment, the related Mortgage Loan Seller shall have the
option, exercisable in its sole discretion, to make Mexico Gross-Up Payments
that are required to be made by the Mortgagor under the terms of the loan
agreement for the Torre Mayor Pari Passu Note A-2 Mortgage Loan, to the extent
the Mortgagor fails to make such payments.
(b) Any consultation rights afforded to the holder of the Torre
Mayor Pari Passu Note A-2 Mortgage Loan pursuant to Section 3 of the Torre Mayor
A Notes Intercreditor Agreement shall be exercised by the Majority
Certificateholder of the Controlling Class.
(c) Upon receipt by the Trustee of notice that an "Event of Default"
(as defined in the Torre Mayor Pooling Agreement) affecting the Torre Mayor Pari
Passu Note A-2 Mortgage Loan exists and the Torre Mayor Master Servicer or the
Torre Mayor Special Servicer, as applicable, has not been terminated, the
Trustee shall promptly notify the Certificateholders of such event, and shall
request that the Certificateholders provide it with direction with respect to
the appointment of a sub-servicer for the Torre Mayor Whole Loan in accordance
with and subject to the terms of the Torre Mayor Pooling Agreement.
(d) Upon the enactment of Cayman Islands tax legislation that would
trigger a Cayman Islands Gross-Up Payment, the related Mortgage Loan Seller
shall have the option, exercisable in its sole discretion, to make Cayman
Islands Gross-Up Payments that are required to be made by the Mortgagor under
the terms of the loan agreement for the Cayman Islands Mortgage Loan, to the
extent the Mortgagor fails to make such payments.
Section 3.32 Class A-SBFL Swap Contract.
(a) On or before the Closing Date, the Trustee, not in its
individual capacity but solely in its capacity as Trustee, on behalf of the
Trust, shall enter into the Class A-SBFL Swap Contract and related agreements
with the Class A-SBFL Swap Counterparty.
(b) Not later than 11:00 a.m. New York City time, on the Business
Day prior to each Distribution Date, based on the CMSA Loan Periodic Update File
for the related Collection Period provided by the Master Servicer pursuant to
Section 4.01(b) and subject to the priorities set forth in Sections 4.01(a),
4.01(b) and 4.01(l), the Trustee shall (i) calculate the Class A-SBFL Net Swap
Payment, if any, and the Class A-SBFL Floating Swap Payment, if any, in
accordance with the terms of the Class A-SBFL Swap Contract and this Agreement,
and (ii) notify the Class A-SBFL Swap Counterparty of any Class A-SBFL Floating
Swap Payment or Class A-SBFL Net Swap Payment. In the event the Trustee fails to
receive any Class A-SBFL Floating Swap Payment payable by the Class A-SBFL Swap
Counterparty on the Business Day prior to the related Distribution Date, the
Trustee shall provide the Class A-SBFL Swap Counterparty with notice of such
non-payment no later than 5:00 p.m. New York City time on such date. On the
related Distribution Date following such notice of non-payment, if the Trustee
fails to receive the Class A-SBFL Floating Swap Payment by 11:00 a.m. New York
City time on such Distribution Date, a Class A-SBFL Swap Default and a Class
A-SBFL Distribution Conversion shall occur on such Distribution Date.
(c) On each Distribution Date, the Trustee shall remit the Class
A-SBFL Net Swap Payment, if any, to the Class A-SBFL Swap Counterparty from the
Class A-SBFL Floating Rate Account; provided, that upon and during the
continuation of a Class A-SBFL Distribution Conversion, the Trustee shall not
make such payments to the Class A-SBFL Swap Counterparty. Promptly upon receipt
of any payment or other receipt in respect of the Class A-SBFL Swap Contract,
the Trustee shall deposit the same into the Class A-SBFL Floating Rate Account.
(d) The Trustee shall at all times enforce the Trust's rights under
the Class A-SBFL Swap Contract. In the event of a Class A-SBFL Swap Default, the
Trustee shall promptly provide written notice to the Holders of the Class A-SBFL
Certificates and shall be required to take such actions (following the
expiration of any applicable grace period specified in the Class A-SBFL Swap
Contract), unless otherwise directed in writing by the holders of 25% by
Certificate Balance of the Class A-SBFL Certificates, to enforce the rights of
the Trust under the Class A-SBFL Swap Contract as may be permitted by the terms
thereof, including termination thereof, and use Class A-SBFL Swap Termination
Fees, if any, received from the Class A-SBFL Swap Counterparty to enter into a
replacement interest rate swap contract on substantially identical terms or on
such other terms reasonably acceptable to the Trustee and the Depositor, with a
replacement swap counterparty that would not cause a Rating Agency Trigger Event
and satisfies the requirements of the Class A-SBFL Swap Contract, subject, in
each case, to written confirmation by the Rating Agencies that such action will
not result in a qualification, downgrade or withdrawal of the then current
ratings of the Certificates. If the costs attributable to entering into a
replacement interest rate swap contract would exceed the amount of any Swap
Termination Fees, a replacement interest rate swap contract shall not be entered
into and any such proceeds will instead be distributed, pro rata, to the holders
of the Class A-SBFL Certificates on the immediately succeeding Distribution Date
as part of the Class A-SBFL Interest Distribution Amount for such Distribution
Date. Notwithstanding anything to the contrary in the Agreement, the Trustee
shall be under no obligation to take any action to enforce the rights of the
Trust Fund under the Class A-SBFL Swap Agreement unless it is assured, in its
sole discretion, that the costs and expenses of such action(s) will be
reimbursed by the Holders of the Class A-SBFL Certificates or another party
(other than the Trust).
Any Class A-SBFL Distribution Conversion shall become permanent
following the determination by the Trustee not to enter into a replacement
interest rate swap contract and distribution of any Class A-SBFL Swap
Termination Fees to the Holders of the Class A-SBFL Certificates. Any such Swap
Default (or termination of the Class A-SBFL Swap Contract) and the resulting
Class A-SBFL Distribution Conversion shall not, in and of itself, constitute an
Event of Default under this Agreement.
Upon any change (or notification to the Trustee that such change is
imminent) in the payment terms on the Class A-SBFL Certificates, including as a
result of a Class A-SBFL Distribution Conversion, termination of a Class A-SBFL
Distribution Conversion, a Swap Default or the cure of a Swap Default, the
Trustee shall promptly notify the Depositor of the change in payment terms.
(e) In the event that the Class A-SBFL Swap Contract is terminated
and no replacement Class A-SBFL Swap Contract is entered into, the Trustee shall
provide notice of such termination to the Class A-SBFL Certificateholders, which
notice shall include: "The Class A-SBFL Swap Contract with respect to the Class
A-SBFL Certificates is terminated as of [date]. Certificateholders and
beneficial owners that are Plans are advised that the Exemption will no longer
apply to the Class A-SBFL Certificates, effective 60 days after the receipt of
this notice. "Exemption", as used in this notice, shall mean , collectively, the
individual prohibited transaction exemptions granted by the U.S. Department of
Labor to NationsBank Corporation (predecessor in interest to Bank of America
Corporation), PTE 93-31, to Credit Suisse Securities (USA) LLC, PTE 89-90, and
to Xxxxxxx, Xxxxx & Co., PTE 89-88, each as amended by XXX 00-00, XXX 0000-00
and PTE 2002-41, and to Barclays Capital Inc., Final Authorization Number
2004-03E. All other capitalized terms used in this notice shall have the meaning
assigned to them in the Pooling and Servicing Agreement."
(f) The Trustee's obligation to pay to the Class A-SBFL Swap
Counterparty any funds under the Class A-SBFL Swap Contract shall be limited to
the provisions of Section 3.05(h) and in accordance with the priorities set
forth herein; the Trustee will have no obligation on behalf of the Trust Fund to
pay or cause to be paid to the Class A-SBFL Swap Counterparty any portion of the
amounts due to the Class A-SBFL Swap Counterparty under the Class A-SBFL Swap
Contract for any Distribution Date unless and until the related interest payment
on the Class A-SBFL Regular Interest for such Distribution Date is actually
received by the Trustee.
(g) Any costs and expenses related to the Class A-SBFL Swap Contract
will not be payable from the Class A-SBFL Floating Rate Account of the Trust and
will not constitute Trust Fund expenses. No party hereunder shall advance any
Class A-SBFL Floating Swap Payments. Simultaneous with the delivery to the
Certificateholders, the Trustee shall (1) make available to the Class A-SBFL
Swap Counterparty the Distribution Date Statement and (2) make available or
deliver to the Class A-SBFL Swap Counterparty copies of any other reports or
notices delivered to the Class A-SBFL Certificateholders as and to the extent
required by the Class A-SBFL Swap Contract.
Section 3.33 Pending Amendment of KinderCare Portfolio Whole Loan.
The parties hereto acknowledge that an amendment relating to the
KinderCare Portfolio Whole Loan is pending as of the date hereof, which
amendment is to be made primarily to (i) permit certain transfers of up to 80%
of the direct or indirect ownership interests in the Borrower, provided that the
Sponsor Principals (as defined in the related loan agreement) maintain control
of the Borrower, (ii) permit new entities controlled by the Sponsor (as defined
in the related loan agreement) or the Sponsor Principals to be inserted into the
ownership structure as long as the Sponsor Principals' indirect or direct
ownership of the Borrower is not reduced, and (iii) reduce the notice for
transfers permitted by Section 7.3(e) and (f) of the related loan agreement from
30 days prior written notice to 15 days prior written notice. It is understood
and agreed that the foregoing amendment has been previously approved and is
pending, subject to satisfaction of the conditions set forth in the related
Mortgage Loan documents, and, if such conditions are satisfied, the Master
Servicer is authorized and directed to approve such amendment on behalf of the
Trust as the holder of the KinderCare Portfolio Pari Passu Note A-2 and no
further action or consent by any other party hereto shall be required in respect
of such amendment.
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS AND RELATED MATTERS
Section 4.01 Distributions.
(a) (i) On each Distribution Date, that portion of the Torre Mayor
Pari Passu Note A-2 Mortgage Loan Available Distribution Amount described in
Sections 4.01(k)(i), (ii) and (iii) shall be deemed to be withdrawn from the
Torre Mayor Loan REMIC Distribution Account and deemed to be distributed in
respect of the Torre Mayor Loan REMIC Regular Interest for deposit into the
REMIC I Distribution Account. Immediately thereafter, amounts held in the REMIC
I Distribution Account shall be withdrawn or deemed to be withdrawn (to the
extent of the Available Distribution Amount, the "REMIC I Distribution Amount")
in the case of all Classes of REMIC I Regular Interests and distributed or
deemed to be distributed on the REMIC I Regular Interests as set forth in
Section 4.01(a)(ii) and distributed on the Class R-I Certificates as set forth
in Section 4.01(a)(iii). Thereafter, until distributed to the
Certificateholders, such amounts shall be considered to be held in the REMIC II
Distribution Account.
(ii) Principal and interest amounts, reimbursement of Realized
Losses and Additional Trust Fund Expenses and timing of distributions on
each REMIC I Regular Interest will be identical to such amounts,
reimbursements and timing on the related Corresponding Certificates (in
the case of distributions of principal or reimbursement of Realized Losses
and Additional Trust Fund Expenses on (i) the Class A-1 Certificates,
first to the REMIC I Regular Interest LA-1-1, second to the REMIC I
Regular Interest LA-1-2, third to the REMIC I Regular Interest LA-1-3 and
then to the REMIC I Regular Interest LA-1-4, 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 and then to the REMIC I Regular
Interest LA-2-4, in each case, until reduced to zero; (iii) the Class A-3A
Certificates, first to the REMIC I Regular Interest LA-3A-1, second to the
REMIC I Regular Interest LA-3A-2, and then to the REMIC I Regular Interest
LA-3A-3, in each case, until reduced to zero; (iv) the Class A-SBFL
Regular Interest, first to the REMIC I Regular Interest LA-SBFL-1, second
to the REMIC I Regular Interest LA-SBFL-2, third to the REMIC I Regular
Interest LA-SBFL-3 and then to the REMIC I Regular Interest LA-SBFL-4, in
each case, until reduced to zero; (v) the Class A-4 Certificates, first to
the REMIC I Regular Interest LA-4-1, second to the REMIC I Regular
Interest LA-4-2, third to the REMIC I Regular Interest LA-4-3 and then to
the REMIC I Regular Interest LA-4-4, 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, seven, 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 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; (viii) the Class F Certificates, first to the REMIC I Regular
Interest LF-1, second to the REMIC I Regular Interest LF-2 and then to the
REMIC I Regular Interest LF-3, in each case, until reduced to zero; (ix)
the Class G Certificates, first to the REMIC I Regular Interest LG-1,
second to the REMIC I Regular Interest LG-2 and then to the REMIC I
Regular Interest LG-3, in each case, until reduced to zero; (x) 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; (xi)
the Class J Certificates, first to the REMIC I Regular Interest LJ-1,
second to the REMIC I Regular Interest LJ-2 and then to the REMIC I
Regular Interest LJ-3, in each case, until reduced to zero; and (xii) the
Class L Certificates, first to the REMIC I Regular Interest LL-1, and then
to the REMIC I Regular Interest LL-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 A-2, Class A-3A, Class X-0X, Xxxxx X-0, Class
A-1A, Class A-M, Class A-J, Class B, Class C, Class D, Class E, Class F,
Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class O,
Class P and Class Q Certificate Pass-Through Rates and Class A-SBFL
Regular Interest Pass-Through Rate 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 (xlii) 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 X-0, Xxxxx X-0X, Xxxxx X-0X and Class A-4 Certificates and the Class
A-SBFL Regular Interest, 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 (other than the Class A-SBFL
Certificates) and the Class A-SBFL Regular Interest 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 A-2,
Class A-3A, Class X-0X, Xxxxx X-0, Class A-1A, Class XC and Class XP
Certificates and the Class A-SBFL Regular Interest 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 and the Class A-SBFL Regular Interest for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates, if an
(ii) to distributions of principal to the Holders of the Class A-1,
Class X-0, Xxxxx X-0X, Xxxxx X-0X and Class A-4 Certificates and the Class
A-SBFL Regular Interest in reduction of the Class Principal Balances
thereof concurrently (A)(1) first, to the Holders of the Class A-SBFL
Regular Interest, 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-SBFL Regular
Interest has been reduced to the Class A-SBFL 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-SBFL Regular Interest (up to the Class A-SBFL
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-SBFL Regular Interest (up to
the Class A-SBFL 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-3A 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-SBFL Regular Interest (up to the Class A-SBFL
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-3A Certificates has been reduced to zero;
(5) fifth, to the Holders of the Class A-3B 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-SBFL Regular Interest (up to the Class A-SBFL
Planned Principal Amount) and the Class A-1, Class A-2 and Class A-3A
Certificates have been made on such Distribution Date, until the
outstanding Class Principal Balance of the Class A-3B Certificates has
been reduced to zero; (6) sixth, to the Holders of the Class A-SBFL
Regular Interest, 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-SBFL Regular
Interest (up to the Class A-SBFL Planned Principal Amount) and the Class
A-1, Class A-2, Class A-3A and Class A-3B Certificates have been made on
such Distribution Date, until the outstanding Class Principal Balance of
the Class A-SBFL Regular Interest has been reduced to zero and (7)
seventh, 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-3A
and Class A-3B Certificates and the Class A-SBFL Regular Interest 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-3A and Class A-3B
Certificates and the Class A-SBFL Regular Interest 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-3A
and Class A-3B Certificates and the Class A-SBFL Regular Interest 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 Certificates, the
Class A-2 Certificates, the Class A-3A Certificates, the Class A-3B
Certificates, the Class A-SBFL Regular Interest, the Class A-4
Certificates and the Class A-1A Certificates, up to an amount equal to,
and pro rata as among such Classes in accordance with, the respective
amounts of Realized Losses and Additional Trust Fund Expenses, if any,
previously allocated to the Class Principal Balance of such Classes and
for which no reimbursement has previously been paid;
(iv) to distributions of interest to the Holders of the Class A-M
Certificates in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(v) if the Class Principal Balances of the Class A-1 Certificates,
the Class A-2 Certificates, the Class A-3A Certificates, the Class A-3B
Certificates, the Class A-SBFL Regular Interest, the Class A-4
Certificates and the 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
Certificates, the Class A-2 Certificates, the Class A-3A Certificates, the
Class A-3B Certificates, the Class A-SBFL Regular Interest, the Class A-4
Certificates, the Class A-1A Certificates 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 Certificates,
the Class A-2 Certificates, the Class A-3A Certificates, the Class A-3B
Certificates, the Class A-SBFL Regular Interest, the Class A-4
Certificates, the Class A-1A Certificates, Class A-M Certificates and the
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 Certificates,
the Class A-2 Certificates, the Class A-3A Certificates, the Class A-3B
Certificates, the Class A-SBFL Regular Interest, the Class A-4
Certificates, the Class A-1A Certificates, the Class A-M Certificates, the
Class A-J Certificates and the 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
Certificates, the Class A-2 Certificates, the Class A-3A Certificates, the
Class A-3B Certificates, the Class A-SBFL Regular Interest, the Class A-4
Certificates, the Class A-1A Certificates, the Class A-M Certificates, the
Class A-J Certificates, the Class B Certificates and the 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 Certificates,
the Class A-2 Certificates, the Class A-3A Certificates, the Class A-3B
Certificates, the Class A-SBFL Regular Interest, the Class A-4
Certificates, the Class A-1A Certificates, the Class A-M Certificates, the
Class A-J Certificates, the Class B Certificates, the Class C Certificates
and the 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
Certificates, the Class A-2 Certificates, the Class A-3A Certificates, the
Class A-3B Certificates, the Class A-SBFL Regular Interest, the Class A-4
Certificates, the Class A-1A Certificates, the Class A-M Certificates, the
Class A-J Certificates, the Class B Certificates, the Class C
Certificates, the Class D Certificates and the 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
Certificates, the Class A-2 Certificates, the Class A-3A Certificates, the
Class A-3B Certificates, the Class A-SBFL Regular Interest, the Class A-4
Certificates, the Class A-1A Certificates, the Class A-M Certificates, the
Class A-J Certificates, the Class B Certificates, the Class C
Certificates, the Class D Certificates, the Class E Certificates and the
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
Certificates, the Class A-2 Certificates, the Class A-3A Certificates, the
Class A-3B Certificates, the Class A-SBFL Regular Interest, the Class A-4
Certificates, the Class A-1A Certificates, the Class A-M Certificates, the
Class A-J Certificates, the Class B Certificates, the Class C
Certificates, the Class D Certificates, the Class E Certificates, the
Class F Certificates and the 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
Certificates, the Class A-2 Certificates, the Class A-3A Certificates, the
Class A-3B Certificates, the Class A-SBFL Regular Interest, the Class A-4
Certificates, the Class A-1A Certificates, the Class A-M Certificates, the
Class A-J Certificates, the Class B Certificates, the Class C
Certificates, the Class D Certificates, the Class E Certificates, the
Class F Certificates, the Class G Certificates and the 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
Certificates, the Class A-2 Certificates, the Class A-3A Certificates, the
Class A-3B Certificates, the Class A-SBFL Regular Interest, the Class A-4
Certificates, the Class A-1A Certificates, the Class A-M Certificates, the
Class A-J Certificates, the Class B Certificates, the Class C
Certificates, the Class D Certificates, the Class E Certificates, the
Class F Certificates, the Class G Certificates, the Class H Certificates
and the 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
Certificates, the Class A-2 Certificates, the Class A-3A Certificates, the
Class A-3B Certificates, the Class A-SBFL Regular Interest, the Class A-4
Certificates, the Class A-1A Certificates, the Class A-M Certificates, the
Class A-J Certificates, the Class B Certificates, the Class C
Certificates, the Class D Certificates, the Class E Certificates, the
Class F Certificates, the Class G Certificates, the Class H Certificates,
the Class J Certificates and the 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 Certificates,
the Class A-2 Certificates, the Class A-3A Certificates, the Class A-3B
Certificates, the Class A-SBFL Regular Interest, the Class A-4
Certificates, the Class A-1A Certificates, the Class A-M Certificates, the
Class A-J Certificates, the Class B Certificates, the Class C
Certificates, the Class D Certificates, the Class E Certificates, the
Class F Certificates, the Class G Certificates, the Class H Certificates,
the Class J Certificates, the Class K Certificates and the 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
Certificates, the Class A-2 Certificates, the Class A-3A Certificates, the
Class A-3B Certificates, the Class A-SBFL Regular Interest, the Class A-4
Certificates, the Class A-1A Certificates, the Class A-M Certificates, the
Class A-J Certificates, the Class B Certificates, the Class C
Certificates, the Class D Certificates, the Class E Certificates, the
Class F Certificates, the Class G Certificates, the Class H Certificates,
the Class J Certificates, the Class K Certificates, the Class L
Certificates and the 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
Certificates, the Class A-2 Certificates, the Class A-3A Certificates, the
Class A-3B Certificates, the Class A-SBFL Regular Interest, the Class A-4
Certificates, the Class A-1A Certificates, the Class A-M Certificates, the
Class A-J Certificates, the Class B Certificates, the Class C
Certificates, the Class D Certificates, the Class E Certificates, the
Class F Certificates, the Class G Certificates, the Class H Certificates,
the Class J Certificates, the Class K Certificates, the Class L
Certificates, the Class M Certificates and the 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 Certificates,
the Class A-2 Certificates, the Class A-3A Certificates, the Class A-3B
Certificates, the Class A-SBFL Regular Interest, the Class A-4
Certificates, the Class A-1A Certificates, the Class A-M Certificates, the
Class A-J Certificates, the Class B Certificates, the Class C
Certificates, the Class D Certificates, the Class E Certificates, the
Class F Certificates, the Class G Certificates, the Class H Certificates,
the Class J Certificates, the Class K Certificates, the Class L
Certificates, the Class M Certificates, the Class N Certificates and the
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;
(lii) to distributions of interest to the Holders of the Class Q
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;
(liii) if the Class Principal Balances of the Class A-1
Certificates, the Class A-2 Certificates, the Class A-3A Certificates, the
Class A-3B Certificates, the Class A-SBFL Regular Interest, the Class A-4
Certificates, the Class A-1A Certificates, the Class A-M Certificates, the
Class A-J Certificates, the Class B Certificates, the Class C
Certificates, the Class D Certificates, the Class E Certificates, the
Class F Certificates, the Class G Certificates, the Class H Certificates,
the Class J Certificates, the Class K Certificates, the Class L
Certificates, the Class M Certificates, the Class N Certificates, the
Class O Certificates and the Class P Certificates have been reduced to
zero, to distributions of principal to the Holders of the Class Q
Certificates, in an amount (not to exceed the Class Principal Balance of
the Class Q Certificates outstanding immediately prior to such
Distribution Date) equal to the entire remaining Principal Distribution
Amount for such Distribution Date;
(liv) to distributions to the Holders of the Class Q 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 Q Certificates and that remain
unreimbursed immediately prior to such Distribution Date; and
(lv) 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 (liv) above;
provided that, on each Distribution Date coinciding with or following the Senior
Principal Distribution Cross Over Date, and in any event on the Final
Distribution Date, the payments of principal to be made pursuant to clause (ii)
above, will be so made to the Holders of the Class A-1 Certificates, the Class
A-2 Certificates, the Class A-3A Certificates, the Class A-3B Certificates, the
Class A-SBFL Regular Interest, the Class A-4 Certificates and the Class A-1A
Certificates, subject to available funds, up to an amount equal to, and pro rata
as among such Classes in accordance with, the respective then outstanding Class
Principal Balances of such Classes, and without regard to the Principal
Distribution Amount for such date; and provided, further, that, on the Final
Distribution Date, the payments of principal to be made pursuant to any of
clauses (v), (viii), (xi), (xiv), (xvii), (xx), (xxiii), (xxvi), (xxix),
(xxxii), (xxxv), (xxxviii), (xli), (xliv), (xlvii), (l) and (liii) above with
respect to any Class of Sequential Pay Certificates, will be so made to the
Holders thereof, subject to available funds, up to an amount equal to the entire
then outstanding Class Principal Balance of such Class of Certificates, and
without regard to the Principal Distribution Amount for such date. References to
"remaining Principal Distribution Amount" in clause (ii) above, in connection
with payments of principal to be made to the Holders of the Class A-1
Certificates, the Class A-2 Certificates, the Class A-3A Certificates, the Class
A-3B Certificates, the Class A-SBFL Regular Interest, the Class A-4 Certificates
and the Class A-1A Certificates shall be to the Principal Distribution Amount
for such Distribution Date, net of any distributions of principal made in
respect thereof to the Holders of each other Class of Class A Certificates, if
any, that pursuant to clause (ii) above has an earlier right to payment with
respect thereto. References to "remaining Principal Distribution Amount" in any
of clauses (v), (viii), (xi), (xiv), (xvii), (xx), (xxiii), (xxvi), (xxix),
(xxxii), (xxxv), (xxxviii), (xli), (xliv), (xlvii), (l) and (liii) above, in
connection with the payments of principal to be made to the Holders of any Class
of Sequential Pay Certificates, shall be to the Principal Distribution Amount
for such Distribution Date, net of any payments of principal made in respect
thereof to the Holders of each other Class of Sequential Pay Certificates that
has a higher Payment Priority.
All distributions of interest made in respect of the Class XC and
Class XP Certificates on any Distribution Date pursuant to clause (i) above,
shall be deemed to have been made in respect of all the Components of such
Class, pro rata in accordance with the respective amounts of interest that would
be payable on such Components on such Distribution Date based on the Class XC
Strip Rate and Class XP Strip Rate, as applicable, of such Component multiplied
by its Component Notional Amount, 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
Certificates, the Class A-2 Certificates, the Class A-3A Certificates, the Class
A-3B Certificates, the Class A-SBFL Regular Interest, the Class A-4
Certificates, the Class A-M Certificates, the Class A-J Certificates, the Class
B Certificates, the Class C Certificates, the Class D Certificates, the Class E
Certificates, the Class F Certificates, the Class G Certificates, the Class H
Certificates and the Class J Certificates in an amount equal to the product of
(a) a fraction whose numerator is the amount distributed as principal to such
Class on such Distribution Date, and whose denominator is the total amount
distributed as principal to the Class A-1 Certificates, the Class A-2
Certificates, the Class A-3A Certificates, the Class A-3B Certificates, the
Class A-SBFL Regular Interest, the Class A-4 Certificates, the Class A-M
Certificates, the Class A-J Certificates, the Class B Certificates, the Class C
Certificates, the Class D Certificates, the Class E Certificates, the Class F
Certificates, the Class G Certificates, the Class H Certificates, the Class J
Certificates, the Class K Certificates, the Class L Certificates, the Class M
Certificates, the Class N Certificates, the Class O Certificates, the Class P
Certificates and the Class Q 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, 80% and 20%, respectively, until and including the
Distribution Date in March 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 (other than the Class A-SBFL Certificates) or the
Class A-SBFL Regular Interest, 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 K, Class L, Class M, Class N, Class O, Class P or Class Q
Certificates or, except as provided in Section 4.01(l), the Class A-SBFL
Certificates. After the Certificate Principal Balances of the Class A-1
Certificates, the Class A-2 Certificates, the Class A-3A Certificates, the
Class A-3B Certificates, the Class A-SBFL Regular Interest, the Class A-4
Certificates, the Class A-1A Certificates, the Class A-M Certificates, the
Class A-J Certificates, the Class B Certificates, the Class C
Certificates, the Class D Certificates, the Class E Certificates, the
Class F Certificates, the Class G Certificates, the Class H Certificates
and the Class J Certificates have been reduced to zero, (i) 80% and 20% 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 March 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, in the case of the Torre Mayor Pari Passu Note A-2 Mortgage
Loan, the Torre Mayor Loan REMIC to REMIC I in respect of the Torre Mayor
Loan REMIC Regular Interest, and in the case of all of the Mortgage Loans,
from REMIC I to REMIC II in respect of the REMIC I Regular Interests, pro
rata based upon the amount of principal distributed in respect of each
Class of REMIC I Regular Interest for such Distribution Date pursuant to
Section 4.01(a)(ii) above.
(d) All distributions made with respect to each Class on each
Distribution Date shall be allocated pro rata among the outstanding Certificates
in such Class based on their respective Percentage Interests. Except as
otherwise provided below, all such distributions with respect to each Class of
Certificates on each Distribution Date shall be made to the Certificateholders
of the respective Class of record at the close of business on the related Record
Date and shall be made by wire transfer of immediately available funds to the
account of any such Certificateholder at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with written wiring instructions no less than five Business Days
prior to the related Record Date (which wiring instructions may be in the form
of a standing order applicable to all subsequent Distribution Dates), or
otherwise by check mailed to the address of such Certificateholder as it appears
in the Certificate Register. The final distribution on each Certificate
(determined without regard to any possible future reimbursement of any Realized
Loss or Additional Trust Fund Expense previously allocated to such Certificate)
will be made in like manner, but only upon presentation and surrender of such
Certificate at the Corporate Trust Office or such other location specified in
the notice to Certificateholders of such final distribution. Any distribution
that is to be made with respect to a Certificate in reimbursement of a Realized
Loss or Additional Trust Fund Expense previously allocated thereto, which
reimbursement is to occur after the date on which such Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Certificateholder that surrendered such Certificate
as such address last appeared in the Certificate Register or to any other
address of which the Trustee was subsequently notified in writing.
(e) Each distribution with respect to a Book-Entry Certificate shall
be paid to the Depository, as Holder thereof, and the Depository shall be
responsible for crediting the amount of such distribution to the accounts of its
Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution to
the Certificate Owners that it represents and to each indirect participating
brokerage firm (a "brokerage firm" or "indirect participating firm") for which
it acts as agent. Each brokerage firm shall be responsible for disbursing funds
to the Certificate Owners that it represents. None of the Trustee, the
Certificate Registrar, the Depositor, the Master Servicer, the Special Servicer
or the REMIC Administrator shall have any responsibility therefor except as
otherwise provided by this Agreement or applicable law.
(f) The rights of the Certificateholders to receive distributions
from the proceeds of the Trust Fund in respect of their Certificates, and all
rights and interests of the Certificateholders in and to such distributions,
shall be as set forth in this Agreement. Neither the Holders of any Class of
Certificates nor any party hereto shall in any way be responsible or liable to
the Holders of any other Class of Certificates in respect of amounts properly
previously distributed on the Certificates. Distributions in reimbursement of
Realized Losses and Additional Trust Fund Expenses previously allocated to a
Class of Certificates shall not constitute distributions of principal and shall
not result in a reduction of the related Class Principal Balance.
(g) Except as otherwise provided in Section 9.01, whenever the
Trustee expects that the final distribution with respect to any Class of
Certificates (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to such
Class of Certificates) will be made on the next Distribution Date, the Trustee
shall, as soon as practicable in the month in which such Distribution Date
occurs, mail to each Holder of such Class of Certificates as of the date of
mailing a notice to the effect that:
(i) the Trustee expects that the final distribution with respect to
such Class of Certificates will be made on such Distribution Date but only
upon presentation and surrender of such Certificates at the Corporate
Trust Office or such other location therein specified, and
(ii) no interest shall accrue on such Certificates from and after
such Distribution Date.
Any funds not distributed to any Holder or Holders of Certificates
of such Class on such Distribution Date because of the failure of such Holder or
Holders to tender their Certificates shall, on such date, be set aside and held
uninvested in trust and credited to the account or accounts of the appropriate
non-tendering Holder or Holders. If any Certificates as to which notice has been
given pursuant to this Section 4.01(g) shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice all such Certificates shall not have been surrendered for cancellation,
the Trustee, directly or through an agent, shall take such steps to contact the
remaining non-tendering Certificateholders concerning the surrender of their
Certificates as it shall deem appropriate. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders following the
first anniversary of the delivery of such second notice to the non-tendering
Certificateholders shall be paid out of such funds. No interest shall accrue or
be payable to any Certificateholder on any amount held in trust hereunder by the
Trustee as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with this Section
4.01(g). If all of the Certificates shall not have been surrendered for
cancellation by the second anniversary of the delivery of the second notice, the
Trustee shall distribute to the Class R-II Certificateholders all unclaimed
funds and other assets that remain subject hereto.
(h) Notwithstanding any other provision of this Agreement, the
Trustee shall comply with all federal withholding requirements respecting
payments to Certificateholders of interest or original issue discount that the
Trustee reasonably believes are applicable under the Code taking into account
any applicable exemptions from, or reductions in, withholding upon receipt of
appropriate 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.
(k) On each Distribution Date, the Trustee, in respect of the Torre
Mayor Loan REMIC Regular Interest and the Class R-TM Certificates, shall (except
as otherwise provided in Section 9.01), based on information provided by the
Master Servicer, apply amounts on deposit in the Torre Mayor Loan REMIC
Distribution Account, after payment of amounts payable from the Torre Mayor Loan
REMIC Distribution Account in accordance with Section 3.05(b)(ii) through (vi),
to the extent related to the Torre Mayor Pari Passu Note A-2 Mortgage Loan, for
the following purposes and in the following order of priority, in each case to
the extent of the remaining portion of the Torre Mayor Pari Passu Note A-2
Mortgage Loan Available Distribution Amount that remain after all prior
distributions under this Section 4.01(k):
(i) (with respect to the Torre Mayor Pari Passu Note A-2 Mortgage
Loan, as deemed distributions from the Torre Mayor Loan REMIC to REMIC I
in respect of the Torre Mayor Pari Passu Note A-2 Mortgage Loan as part of
the Available Distribution Amount for such Distribution Date, up to an
amount equal to all Uncertificated Distributable Interest in respect of
the Torre Mayor Pari Passu Note A-2 Mortgage Loan for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates;
(ii) with respect to the Torre Mayor Pari Passu Note A-2 Mortgage
Loan, as deemed distributions from the Torre Mayor Loan REMIC to REMIC I
in respect of the Torre Mayor Pari Passu Note A-2 Mortgage Loan as part of
the Available Distribution Amount for such Distribution Date, up to an
amount equal to the Principal Distribution Amount for the Torre Mayor Pari
Passu Note A-2 Mortgage Loan for such Distribution Date;
(iii) with respect to the Torre Mayor Pari Passu Note A-2 Mortgage
Loan, as deemed distributions from the Torre Mayor Loan REMIC to REMIC I
in respect of the Torre Mayor Pari Passu Note A-2 Mortgage Loan as part of
the Available Distribution Amount for such Distribution Date, to reimburse
the Torre Mayor Pari Passu Note A-2 Mortgage Loan for all Realized Losses
and Additional Trust Fund Expenses, if any, previously allocated with
respect to the Torre Mayor Pari Passu Note A-2 Mortgage Loan and for which
no reimbursement has previously been paid; and
(iv) with respect to the Torre Mayor Pari Passu Note A-2 Mortgage
Loan, to make distributions to the Holders of the Class R-TM Certificates
in respect of the Torre Mayor Loan REMIC Residual Interest, up to an
amount equal to the excess, if any, of (A) the distributions made on the
Torre Mayor Pari Passu Note A-2 Mortgage Loan on such Distribution Date,
over (B) the sum of the distributions deemed made in respect of the Torre
Mayor Loan REMIC Regular Interest on such Distribution Date pursuant to
clauses (i), (ii) and (iii) of this Section 4.01(k) and Section 4.01(c);
provided, that any Excess Liquidation Proceeds with respect to the Torre
Mayor Pari Passu Note A-2 Mortgage Loan shall be held as provided in
Section 3.04(c)(iv).
(l) On each Distribution Date, to the extent of the Class A-SBFL
Available Funds for such Distribution Date, the Trustee shall make distributions
from the Class A-SBFL Floating Rate Account in the following order of priority,
satisfying in full, to the extent required and possible, each priority before
making any distribution with respect to any succeeding priority:
(A) First, to the Holders of the Class A-SBFL Certificates in
respect of interest, up to an amount equal to the Class A-SBFL
Interest Distribution Amount, for such Distribution Date;
(B) Second, to the Holders of the Class A-SBFL Certificates in
reduction of the Certificate Balances thereof, an amount equal to
the Class A-SBFL Principal Distribution Amount until the outstanding
Certificate Balance thereof has been reduced to zero;
(C) Third, to the Holders of the Class A-SBFL Certificates
until all Realized Losses and Additional Trust Fund Expenses
previously allocated to the Class A-SBFL Certificates (as a result
of the allocation of Realized Losses and Additional Trust Fund
Expenses to the Class A-SBFL Regular Interest) but not previously
reimbursed, have been reimbursed in full; and
(D) Fourth, to pay termination payments, if any, to the A-SBFL
Swap Counterparty; and
(E) Fifth, any remaining amount to the Holders of the Class
A-SBFL Certificates.
So long as a Class A-SBFL Distribution Conversion is not in effect,
any Prepayment Premiums paid on the Class A-SBFL Regular Interest shall be
payable to the Class A-SBFL Swap Counterparty pursuant to the terms of the Class
A-SBFL Swap Contract on a net basis as part of the Class A-SBFL Net Swap Payment
specified in Section 3.32. On each Distribution Date for which a Class A-SBFL
Distribution Conversion is in effect, any Prepayment Premium paid on the Class
A-SBFL Regular Interest shall be distributed to the Holders of the Class A-SBFL
Certificates. Any termination payments due to the Class A-SBFL Swap Counterparty
under the Class A-SBFL Swap Contract shall be payable solely from (1) amounts,
if any, remaining in the Class A-SBFL Floating Rate Account after all other
amounts have been paid to the Class A-SBFL Regular Interest (including all
principal amounts outstanding) and to the Class A-SBFL Certificates pursuant to
Section 4.01 and (2) to the extent of any payment made by a replacement swap
counterparty to the Trust Fund in consideration for entering into such
replacement swap contract, if any (less any costs and expenses incurred by the
Trust Fund in connection with entering into such replacement swap contract).
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,
to the A-SBFL Swap Counterparty 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 and the
Class A-SBFL 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 and the
Class A-SBFL Certificates allocable to Distributable Certificate Interest
or the Class A-SBFL Interest Distribution Amount and the amount of the
distribution, if any, on such Distribution Date to the Holders of each
Class of REMIC II Regular Certificates and the Class A-SBFL Regular
Interest allocable to Prepayment Premiums, and, with respect to the Class
A-SBFL Certificates, if applicable, notification that the amount of
interest distribution thereon is equal to the interest distribution amount
with respect to the Class A-SBFL Regular Interest which is being paid as a
result of a Class A-SBFL Distribution Conversion;
(iii) [Reserved];
(iv) [Reserved];
(v) the aggregate amount of P&I Advances (both as to those within
any applicable grace period and those which are beyond any applicable
grace period, together with the aggregate amount of delinquencies) and
other Servicing Advances made in respect of the immediately preceding
Distribution Date;
(vi) P&I Advances outstanding as of the Master Servicer Remittance
Date;
(vii) the aggregate amount of P&I Advances made with respect to the
Mortgage Pool and with respect to each Loan Group in respect of the
immediately preceding Determination Date;
(viii) the aggregate Stated Principal Balance of the Mortgage Pool
outstanding immediately before and immediately after such Distribution
Date;
(ix) the number, aggregate principal balance, weighted average
remaining term to maturity and weighted average Mortgage Rate of the
Mortgage Pool as of the end of the Collection Period for the immediately
preceding Determination Date;
(x) as of the Determination Date for the related Distribution Date,
the number, aggregate unpaid principal balance and specific identification
(by loan number) of Mortgage Loans (A) delinquent 30-59 days, (B)
delinquent 60-89 days, (C) delinquent 90 or more days, (D) current but
specially serviced or in foreclosure but not a REO Property and (E)
identification of Mortgage Loans the Mortgagor for which is subject to
bankruptcy;
(xi) with respect to any REO Property included in the Trust Fund as
of the end of the Collection Period for such Distribution Date, the
principal balance of the Mortgage Loan as of the date such Mortgage Loan
became delinquent;
(xii) the Accrued Certificate Interest and Distributable Certificate
Interest in respect of each Class of REMIC II Regular Certificates and the
Class A-SBFL Regular Interest for such Distribution Date;
(xiii) the aggregate amount of Distributable Certificate Interest
payable in respect of each Class of REMIC II Regular Certificates and the
Class A-SBFL Regular Interest on such Distribution Date, including,
without limitation, any Distributable Certificate Interest remaining
unpaid from prior Distribution Dates;
(xiv) any unpaid Distributable Certificate Interest in respect of
each Class of REMIC II Regular Certificates and the Class A-SBFL Regular
Interest after giving effect to the distributions made on such
Distribution Date;
(xv) the Pass Through Rate for each Class of REMIC II Regular
Certificates and the Class A-SBFL Regular Interest for such Distribution
Date;
(xvi) 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 and the Class A-SBFL Regular Interest;
(xvii) the aggregate of all Realized Losses incurred during the
related Collection Period and all Additional Trust Fund Expenses incurred
during the related Collection Period, and an itemization of all such
Additional Trust Fund Expenses;
(xviii) the Certificate Principal Balance or Notional Amount, as the
case may be, of 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;
(xix) the Certificate Factor for each Class of REMIC II Regular
Certificates and the Class A-SBFL Regular Interest immediately following
such Distribution Date;
(xx) the aggregate amount of servicing fees paid to the Master
Servicer and the Special Servicer, collectively and separately, during the
related Collection Period;
(xxi) 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;
(xxii) current and cumulative outstanding Advances with respect to
the Mortgage Pool and with respect to each Loan Group;
(xxiii) current prepayments and curtailments;
(xxiv) the number and aggregate principal balance of Mortgage Loans
as to which foreclosure proceedings have been commenced as to the related
Mortgaged Property;
(xxv) the ratings from all Rating Agencies for all Classes of
Certificates;
(xxvi) [Reserved];
(xxvii) the amounts held in the Excess Liquidation Proceeds Account,
stating separately the amounts, if any, attributable to the Torre Mayor
Pari Passu Note A-2 Mortgage Loan and Majority Mortgage Loans;
(xxviii) the CMSA Reconciliation of Funds Report;
(xxix) the Class A-SBFL Available Funds for such Distribution Date;
(xxx) LIBOR as calculated for the related Distribution Date and the
next succeeding Distribution Date;
(xxxi) the amounts received and paid in respect of the Class A-SBFL
Swap Contract;
(xxxii) identification of any Rating Agency Trigger Event or Swap
Default as of the close of business on the last day of the immediately
preceding calendar month with respect to the Class A-SBFL Swap Contract;
(xxxiii) the amount of any (A) payment by the A-SBFL Swap
Counterparty as a termination payment, (B) payment in connection with the
acquisition of a replacement interest rate swap contract and (C)
collateral posted in connection with any Rating Agency Trigger Event; and
(xxxiv) the amount of, and identification of, any interest due
thereon (including without limitation, any termination payment received in
connection with the related Swap Contract).
Any item of information disclosed to the Trustee by the Master
Servicer pursuant to Section 3.19(a) since the preceding Distribution Date (or,
in the case of the initial Distribution Date, since the Closing Date) shall be
made available with the Distribution Date Statement.
In the case of information furnished pursuant to clauses (i), (ii)
and (iii) above, the amounts shall be expressed as a dollar amount in the
aggregate for all Certificates of each applicable Class and per Single
Certificate. Except with respect to the Certificate Factor (required to be
reported by clause (xix) above), financial information reported by the Trustee
to the Certificateholders pursuant to this Section 4.02 shall be expressed as a
dollar amount rounded to the nearest whole cent. Absent actual knowledge of an
error therein, the Trustee shall have no obligation to recompute, recalculate or
verify any information provided to it by the Master Servicer or Special
Servicer. The calculations by the Trustee contemplated by this Section 4.02
shall, in the absence of manifest error, be presumptively deemed to be correct
for all purposes hereunder.
The Trustee shall be entitled to rely on but shall not be
responsible for the content or accuracy of any information provided by third
parties for purposes of preparing the Distribution Date Statement and may affix
thereto any disclaimer it deems appropriate in its reasonable discretion
(without suggesting liability on the part of any other party hereto).
Within a reasonable period of time after the end of each calendar
year, the Trustee shall furnish to each Person who at any time during the
calendar year was a Holder of a REMIC II Regular Certificate a statement
containing the information as to the applicable Class set forth in clauses (i),
(ii) and (iii) above of the description of Distribution Date Statement,
aggregated for such calendar year or applicable portion thereof during which
such Person was a Certificateholder, together with such other information as the
Trustee determines to be necessary to enable Certificateholders to prepare their
tax returns for such calendar year. Such obligation of the Trustee shall be
deemed to have been satisfied to the extent that substantially comparable
information shall be provided by the Trustee pursuant to any requirements of the
Code as from time to time are in force.
Upon filing with the IRS, the REMIC Administrator shall furnish to
the Holders of the Class R-I, Class R-II and Class R-TM 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, Class R-II and Class R-TM 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
Serviced Whole Loan, either (i) deposit into the Distribution Account from its
own funds an amount equal to the aggregate amount of P&I Advances, if any, to be
made in respect of the related Distribution Date, (ii) apply amounts held in the
Certificate Account for future distribution to Certificateholders in subsequent
months in discharge of any such obligation to make P&I Advances, or (iii) make
P&I Advances in the form of any combination of (i) and (ii) aggregating the
total amount of P&I Advances to be made; provided that if Late Collections of
any of the delinquent principal and/or interest in respect of which it is to
make P&I Advances on any Master Servicer Remittance Date are then on deposit in
the Certificate Account, the Master Servicer shall use such Late Collections
(net of any Master Servicing Fees, Liquidation Fees and Workout Fees payable
therefrom) to make such P&I Advances. With respect to each Serviced Whole Loan,
on each Master Servicer Remittance Date, the Master Servicer shall either (i)
deposit into the related Serviced Whole Loan Custodial Account from its own
funds an amount equal to the aggregate amount of P&I Advances, if any, to be
made in respect of the related Distribution Date on such Serviced Whole Loan,
(ii) apply amounts held in the related Serviced Whole Loan Custodial Account for
future distribution in subsequent months in discharge of any such obligation to
make P&I Advances, or (iii) make P&I Advances in the form of any combination of
(i) and (ii) aggregating the total amount of P&I Advances to be made; provided
that if Late Collections of any of the delinquent principal and/or interest in
respect of which it is to make P&I Advances on any Master Servicer Remittance
Date are then on deposit in the related Serviced Whole Loan Custodial Account,
the Master Servicer shall use such Late Collections (net of any Master Servicing
Fees, Liquidation Fees and Workout Fees payable therefrom and any portion
thereof required to be paid to any Companion Loan Holder under any Intercreditor
Agreement) to make such P&I Advances. Any amounts held in the Certificate
Account or if a Serviced Whole Loan is involved, the related Serviced Whole Loan
Custodial Account, for future distribution and so used to make P&I Advances
(other than the Late Collections of the delinquent principal and/or interest
contemplated by the proviso to the preceding sentence) shall be appropriately
reflected in the Master Servicer's records and replaced by the Master Servicer
by deposit into the Certificate Account or, if a Serviced Whole Loan is
involved, the related Serviced Whole Loan Custodial Account, on or before the
next succeeding Determination Date (to the extent not previously replaced
through the deposit of Late Collections of the delinquent principal and/or
interest in respect of which such P&I Advances were made). If, as of 3:00 p.m.,
New York City time, on any Master Servicer Remittance Date, the Master Servicer
shall not have made any P&I Advance required to be made (other than a P&I
Advance with respect to a Companion Loan) on such date pursuant to this Section
4.03(a) (and shall not have delivered to the Trustee the requisite Officer's
Certificate and documentation related to a determination of nonrecoverability of
a P&I Advance), then the Trustee shall provide notice of such failure to a
Servicing Officer of the Master Servicer by facsimile transmission sent to
telecopy no. (000) 000-0000 (or such alternative number provided by the Master
Servicer to the Trustee in writing) and by telephone at telephone no. (800)
000-0000 (or such alternative number provided by the Master Servicer to the
Trustee in writing) as soon as possible, but in any event before 4:00 p.m., New
York City time, on such Master Servicer Remittance Date. If, after such notice,
the Trustee does not receive the full amount of such P&I Advances by the close
of business (New York City time) on such Master Servicer Remittance Date, then
(i) unless the Trustee determines that such Advance would be a Nonrecoverable
P&I Advance if made or the Trustee shall make, by 11:00 a.m. on the Distribution
Date or in any event by such time as shall be required to make the required
distribution on such Distribution Date, the portion of such P&I Advances that
was required to be, but was not, made by the Master Servicer on such Master
Servicer Remittance Date and (ii) such failure shall constitute an Event of
Default on the part of the Master Servicer. None of the Master Servicer or the
Trustee shall be required to make a P&I Advance on 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
Serviced Loans for any Distribution Date shall equal, subject to subsection (c)
below, the aggregate of all Monthly Payments (other than Balloon Payments) and
any Assumed Monthly Payments, in each case net of related Master Servicing Fees
and, if applicable, any Non-Serviced Mortgage Loan Primary Servicing Fee payable
hereunder, that were due or deemed due, as the case may be, in respect thereof
on their respective Due Dates during the related Collection Period and that were
not paid by or on behalf of the related Mortgagors or otherwise collected as of
the close of business on the Business Day before the Master Servicer Remittance
Date; provided that if an Appraisal Reduction Amount exists with respect to any
Required Appraisal Serviced Loan, then, in the event of subsequent delinquencies
thereon, the interest portion of the P&I Advance in respect of such Required
Appraisal Serviced Loan for the related Distribution Date shall be reduced (it
being herein acknowledged that there shall be no reduction in the principal
portion of such P&I Advance) to equal the product of (i) the amount of the
interest portion of such P&I Advance for such Required Appraisal Serviced Loan
for such Distribution Date without regard to this proviso, multiplied by (ii) a
fraction, expressed as a percentage, the numerator of which is equal to the
Stated Principal Balance of such Required Appraisal Serviced Loan immediately
prior to such Distribution Date, net of the related Appraisal Reduction Amount,
if any, and the denominator of which is equal to the Stated Principal Balance of
such Required Appraisal Serviced Loan immediately prior to such Distribution
Date; provided, further, that the Master Servicer shall not advance Excess
Interest with respect to ARD Loans or a Prepayment Premium.
(c) Notwithstanding anything herein to the contrary, no P&I Advance
shall be required to be made hereunder if such P&I Advance would, if made,
constitute a Nonrecoverable P&I Advance. In addition, with respect to the
Mortgage Loans other than Mortgage Loans included in a Serviced Whole Loan,
Nonrecoverable P&I Advances shall be reimbursable pursuant to Section 3.05(a)
out of general collections on the Mortgage Pool on deposit in the Certificate
Account. With respect to a Mortgage Loan included in a Serviced Whole Loan,
Nonrecoverable P&I Advances shall be reimbursable pursuant to Section 3.05(f).
The determination by the Master Servicer or the Trustee that it has made a
Nonrecoverable P&I Advance has been made or that any proposed P&I Advance, if
made, would constitute a Nonrecoverable P&I Advance, or any such determination
made by the Special Servicer, shall be evidenced by an Officer's Certificate
delivered promptly (and, in any event, in the case of a proposed P&I Advance by
the Master Servicer, no less than five Business Days prior to the related Master
Servicer Remittance Date) to the Trustee (or, if applicable, retained thereby),
the Depositor, the Rating Agencies, the Directing Certificateholder and the
related Companion Loan Holder(s) and Controlling Holder (if a Serviced Whole
Loan is involved), setting forth the basis for such determination, together with
(such determination is prior to the liquidation of the related Loan or REO
Property) a copy of an Appraisal of the related Mortgaged Property or REO
Property, as the case may be, which shall have been performed within the 12
months preceding such determination, and further accompanied by any other
information that the Master Servicer or the Special Servicer may have obtained
that supports such determination. The Trustee shall deliver such Officer's
Certificate as soon as practicable after its determination that such P&I Advance
would be nonrecoverable. If such an Appraisal shall not have been required and
performed pursuant to the terms of this Agreement, the Master Servicer may,
subject to its reasonable and good faith determination that such Appraisal will
demonstrate the nonrecoverability of the related Advance, obtain an Appraisal
for such purpose at the expense of the Trust out of general collections. The
Trustee shall be entitled to rely on any determination of nonrecoverability that
may have been made by the Master Servicer with respect to a particular P&I
Advance, and the Master Servicer and the Trustee shall be entitled to rely on
any determination of nonrecoverability that may have been made by the Special
Servicer with respect to a particular P&I Advance in the case of Specially
Serviced Loans.
(d) As and to the extent permitted by Section 3.05(a) or Section
3.05(f) with respect to a Whole Loan or any portion thereof, the Master Servicer
and the Trustee shall be entitled to receive interest at the Reimbursement Rate
in effect from time to time, accrued on the amount of each P&I Advance made
thereby (out of its own funds), to the extent that such P&I Advance relates to a
Past Grace Period Serviced Loan when made, or remains outstanding when such
Serviced Loan becomes a Past Grace Period Serviced Loan, in which case such
interest shall begin to accrue when such Serviced Loan becomes a Past Grace
Period Serviced Loan, for so long as such P&I Advance is outstanding (or, in the
case of Advance Interest payable to the Master Servicer, if earlier, until the
Late Collection of the delinquent principal and/or interest in respect of which
such P&I Advance was made has been received by the Master Servicer). Such
interest will be paid: first, out of any Default Charges as set forth in Section
3.27; and second, at any time coinciding with or following the reimbursement of
such P&I Advance, out of general collections on the Mortgage Loans and any REO
Properties on deposit in the Certificate Account or if a Serviced Whole Loan is
involved, out of general collections on deposit in the related Serviced Whole
Loan Custodial Account. As and to the extent provided by Section 3.05(a) or
Section 3.05(f) with respect to a Whole Loan, the Master Servicer shall
reimburse itself or the Trustee, as appropriate, for any P&I Advance made
thereby as soon as practicable after funds available for such purpose are
deposited into the Certificate Account or, if a Serviced Whole Loan is involved
are deposited into the related Serviced Whole Loan Custodial Account, and in no
event shall interest accrue in accordance with this Section 4.03(d) on any P&I
Advance as to which the corresponding Late Collection had been received as of
the related date on which such P&I Advance was made. Interest accrued on any P&I
Advance made under with respect to any Whole Loan under this Section 4.03 shall
be payable (unless required to be paid to any Companion Loan Holder under any
Intercreditor Agreement): (i) first, out of Default Charges collected on or in
respect of the related Mortgage Loan, as applicable, during the same Collection
Period in which such P&I Advance is reimbursed, (ii) second, out of Default
Charges collected on or in respect of the related Companion Loans, pro rata
during the 12-month period in which such Advance is reimbursed, (iii) third, to
the extent that the Default Charges described in the immediately preceding
clause (i) and (ii) are insufficient, but only if such P&I Advance is being
reimbursed at the same time or if such P&I Advance has been previously
reimbursed, out of any other collections that were made on or in respect of such
Serviced Whole Loan, and (iv) solely with respect to such Whole Loan, to the
extent that Default Charges or other collections described in the immediately
preceding clauses (i), (ii) and (iii) are insufficient, but only if such P&I
Advance is being reimbursed at the same time or if such Advances has been
previously reimbursed, out of general collections on or in respect of the
Mortgage Loans; provided that interest on P&I Advances made with respect to any
Companion Loan may be paid solely, pursuant to clauses (i), (ii) and (iii)
above, from Default Charges or other collections received by the Trust on or in
respect of such Companion Loan included in such Serviced Whole Loan.
(e) With regard to such P&I Advances, the Master Servicer, the
Special Servicer or the Trustee shall account for that part of the P&I Advances
that is attributable to Past Grace Period Serviced Loans, and that part of the
P&I Advances that is attributable to Within Grace Period Loans.
(f) None of the Master Servicer or the Trustee shall advance any
amount due to be paid by the Class A-SBFL Swap Counterparty for distribution to
the Class A-SBFL Certificates.
(g) With respect to the Torre Mayor Pari Passu Note A-2 Mortgage
Loan, the Master Servicer shall make its determination that it has made a P&I
Advance on any such Mortgage Loan that is a Nonrecoverable P&I Advance or that
any proposed P&I Advance, if made, would constitute a Nonrecoverable P&I Advance
with respect to such Mortgage Loan in accordance with Section 4.03(c)
independently of any determination made in respect of the Torre Mayor Pari Passu
Note A-1 by the Torre Mayor Master Servicer. If the Master Servicer determines
that a proposed P&I Advance with respect to the Torre Mayor Pari Passu Note A-2
Mortgage Loan if made, or any outstanding P&I Advance with respect to such
Mortgage Loan previously made, would be, or is, as applicable, a Nonrecoverable
Advance, the Master Servicer shall provide the Torre Mayor Master Servicer
written notice of such determination within one Business Day of the date of such
determination. If the Master Servicer receives written notice from the Torre
Mayor Master Servicer that such master servicer has determined, with respect to
the Torre Mayor Pari Passu Note A-1, that any proposed advance of principal and
interest with respect to such loan would be, or any outstanding advance of
principal and interest is, a nonrecoverable advance of principal and interest,
then such determination shall be binding on the Certificateholders and none of
the Master Servicer or the Trustee shall make any additional P&I Advances with
respect to the Torre Mayor Pari Passu Note A-2 Mortgage Loan unless the Master
Servicer has consulted with the Torre Mayor Master Servicer and they agree that
circumstances with respect to the Torre Mayor Whole Loan have changed such that
a proposed future P&I Advance in respect of the Torre Mayor Pari Passu Note A-2
Mortgage Loan would be recoverable; provided, however, that the determination of
Torre Mayor Master Servicer shall not be binding on the Certificateholders, and
the Master Servicer or the Trustee, as applicable, shall make its own
determination of recoverability, in the event that the Torre Mayor Master
Servicer is not approved as a master servicer by each of S&P and Xxxxx'x.
Notwithstanding the foregoing, the Master Servicer shall continue to have the
discretion (including if the Torre Mayor Master Servicer determines that any
advance of principal and/or interest with respect to the Torre Mayor Pari Passu
Note A-1 would be recoverable) provided in this Agreement to determine that any
future P&I Advance or outstanding P&I Advance would be, or is, as applicable, a
Nonrecoverable P&I Advance. Once such a determination is made by the Master
Servicer or the Master Servicer receives written notice of such determination by
the Torre Mayor Master Servicer, neither the Master Servicer nor the Trustee
shall make any additional P&I Advances with respect to the Torre Mayor Pari
Passu Note A-2 Mortgage Loan, until the Master Servicer has followed the process
set forth in this paragraph.
In the event that the Master Servicer obtains knowledge that it is
no longer approved as a master servicer for commercial mortgage securitizations
for S&P, Xxxxx'x, Fitch or DBRS, it shall promptly notify the Torre Mayor Master
Servicer.
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 (other than the Class A-SBFL Certificates) and
the Class A-SBFL Regular Interest exceeds (ii) the aggregate Stated Principal
Balance of the Mortgage Pool that will be outstanding immediately following such
Distribution Date (provided, however, that for purposes of this calculation, any
Workout-Delayed Reimbursement Amounts paid from principal collections on the
Mortgage Pool shall for purposes of this calculation be deemed to still be
outstanding unless the related Unliquidated Advance has been determined to be a
Nonrecoverable Advance on the related Serviced Loan or a Final Determination has
been made with respect to the related Serviced Loan or the related Mortgage Loan
or REO Property is otherwise liquidated or disposed). If such excess does exist,
then the Class Principal Balances of the Class Q, 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 Certificates, the Class A-2 Certificates, the Class A-3A Certificates, the
Class A-3B Certificates, the Class A-SBFL Regular Interest, the Class A-4
Certificates and the 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 and the Class A-SBFL Regular Interest shall be deemed to be
allocations of Realized Losses and Additional Trust Fund Expenses, to the extent
not covered by reductions in distributions of interest pursuant to the
allocations set forth in Section 4.01(b).
(b) With respect to any Distribution Date, any Realized Losses or
Additional Trust Fund Expenses allocated pursuant to Section 4.04(a) with
respect to such Distribution Date shall reduce the REMIC I Principal Balances of
the REMIC I Regular Interests as a write-off and shall be allocated among the
REMIC I Regular Interests in the same priority as the Class of Corresponding
Certificates (in the case of Realized Losses and Additional Trust Fund Expenses
on (i) the Class A-1 Certificates, first to the REMIC I Regular Interest LA-1-1,
second to the REMIC I Regular Interest LA-1-2, third to the REMIC I Regular
Interest LA-1-3 and then to the REMIC I Regular Interest LA-1-4, 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 and then to the REMIC I Regular Interest
LA-2-4, in each case, until reduced to zero; (iii) the Class A-3A Certificates,
first to the REMIC I Regular Interest LA-3A-1, second to the REMIC I Regular
Interest LA-3A-2, and then to the REMIC I Regular Interest LA-3A-3, in each
case, until reduced to zero; (iv) the Class A-SBFL Regular Interest, first to
the REMIC I Regular Interest LA-SBFL-1, second to the REMIC I Regular Interest
LA-SBFL-2, third to the REMIC I Regular Interest LA-SBFL-3 and then to the REMIC
I Regular Interest LA-SBFL-4, in each case, until reduced to zero; (v) the Class
A-4 Certificates, first to the REMIC I Regular Interest LA-4-1, second to the
REMIC I Regular Interest LA-4-2, third to the REMIC I Regular Interest LA-4-3
and then to the REMIC I Regular Interest LA-4-4, 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, seven, 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 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; (viii)
the Class F Certificates, first to the REMIC I Regular Interest LF-1, second to
the REMIC I Regular Interest LF-2 and then to the REMIC I Regular Interest LF-3,
in each case, until reduced to zero; (ix) the Class G Certificates, first to the
REMIC I Regular Interest LG-1, second to the REMIC I Regular Interest LG-2 and
then to the REMIC I Regular Interest LG-3, in each case, until reduced to zero;
(x) 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;
(xi) the Class J Certificates, first to the REMIC I Regular Interest LJ-1,
second to the REMIC I Regular Interest LJ-2 and then to the REMIC I Regular
Interest LJ-3, in each case, until reduced to zero; and (xii) the Class L
Certificates, first to the REMIC I Regular Interest LL-1, and then to the REMIC
I Regular Interest LL-2, in each case, until reduced to zero).
Realized Losses or Additional Trust Fund Expenses allocable to the
Torre Mayor Pari Passu Note A-2 Mortgage Loan will reduce the related
Uncertificated Principal Balance of the Torre Mayor Loan REMIC Regular Interest.
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,
the Master Servicer shall withdraw from the Certificate Account, in respect of
each Mortgage Loan (other than any Non-Serviced Mortgage Loan) that accrues
interest on an Actual/360 Basis, and deposit into the Interest Reserve Account,
an amount equal to one day's interest at the related Net Mortgage Rate on the
Stated Principal Balance of each such Mortgage Loan or as of the Distribution
Date in the month preceding the month in which such Master Servicer Remittance
Date occurs, to the extent a Monthly Payment or P&I Advance is made in respect
thereof (all amounts so deposited in any consecutive January (if applicable) and
February, "Withheld Amounts"). On the Master Servicer Remittance Date in March
of each calendar year, 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 (other than the
Torre Mayor Pari Passu Note A-2 Mortgage Loan) and into the Torre Mayor Loan
REMIC Distribution Account, the aggregate of all Withheld Amounts on deposit in
the Interest Reserve Account with respect to the Torre Mayor Pari Passu Note A-2
Mortgage Loan.
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-29; provided that any of
the Certificates may be issued with appropriate insertions, omissions,
substitutions and variations, and may have imprinted or otherwise reproduced
thereon such legend or legends, not inconsistent with the provisions of this
Agreement, as may be required to comply with any law or with rules or
regulations pursuant thereto, or with the rules of any securities market in
which the Certificates are admitted to trading, or to conform to general usage.
The Certificates will be issuable in registered form only; provided, however,
that in accordance with Section 5.03 beneficial ownership interests in the REMIC
II Regular Certificates shall initially be held and transferred through the
book-entry facilities of the Depository. The Class A-1, Class A-2, Class A-3A,
Class A-3B, Class A-SBFL, 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,
Class P and Class Q 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 or the Certificate Registrar is obligated to register or qualify
any Class of Non-Registered Certificates under the Securities Act or any other
securities law or to take any action not otherwise required under this Agreement
to permit the transfer of any Non-Registered Certificate without registration or
qualification. Any Holder of a Non-Registered Certificate desiring to effect
such a transfer shall, and does hereby agree to, indemnify the Depositor, the
Trustee, the Master Servicer and the Certificate Registrar against any liability
that may result if the transfer is not so exempt or is not made in accordance
with such federal and state laws. Unless the Certificate Registrar determines
otherwise in accordance with applicable law and the rules and procedures of, or
applicable to, the Depository (the "Depository Rules"), transfers of a
beneficial interest in a Book-Entry Certificate representing an interest in a
Non-Registered Certificate that is not rated in one of the top four categories
by a nationally recognized statistical rating organization to (i) an
Institutional Accredited Investor will require delivery in the form of a
Definitive Certificate and the Certificate Registrar shall register such
transfer only upon compliance with the foregoing provisions of this Section
5.02(b) or (ii) a Qualified Institutional Buyer may only be effectuated by means
of an "SRO Rule 144A System" approved for such purpose by the Commission.
(c) With respect to the ERISA Restricted Certificates, the Class V
Certificates and Residual Certificates: no sale, transfer, pledge or other
disposition by any Holder of any such Certificate shall be made unless the
Certificate Registrar shall have received either (i) a representation letter
from the proposed purchaser or transferee of such Certificate substantially in
the form of Exhibit E attached hereto, to the effect that such proposed
purchaser or transferee is not (a) an employee benefit plan subject to the
fiduciary responsibility provisions of ERISA or a plan subject to Section 4975
of the Code, or a governmental plan (as defined in Section 3(32) of ERISA)
subject to any federal, state or local law ("Similar Law") that is, to a
material extent, similar to the foregoing provisions of ERISA or the Code (each
a "Plan") or (b) a person acting on behalf of or using the assets of any such
Plan (including an entity whose underlying assets include Plan assets by reason
of investment in the entity by such Plan and the application of Department of
Labor Regulation ss. 2510.3-101), other than (except with respect to the Class V
Certificates or a Residual Certificate) an insurance company using the assets of
its general account under circumstances whereby the purchase and holding of such
Certificates by such insurance company would be exempt from the prohibited
transaction provisions of ERISA and the Code under Prohibited Transaction Class
Exemption 95-60 or (ii) except for the Class V Certificates or the Residual
Certificates (which may not be transferred to a Holder who does not make the
representation described in clause (i)(a) or (i)(b)), if such Certificate is
presented for registration in the name of a purchaser or transferee that is any
of the foregoing, any Opinion of Counsel or other certification as the
Certificate Registrar may reasonably require and in form and substance
satisfactory to the Certificate Registrar and the Depositor to the effect that
the acquisition and holding of such Certificate by such purchaser or transferee
will not constitute or result in a non-exempt "prohibited transaction" within
the meaning of ERISA, Section 4975 of the Code or any Similar Law, and will not
subject the Trustee, the Certificate Registrar, the Master Servicer, the Special
Servicer, the Underwriters, the Initial Purchasers or the Depositor to any
obligation or liability (including obligations or liabilities under ERISA,
Section 4975 of the Code or any such Similar Law) in addition to those set forth
in the Agreement. The Certificate Registrar shall not register the sale,
transfer, pledge or other disposition of any such Certificate unless the
Certificate Registrar has received either the representation letter described in
clause (i) above or, with respect to the ERISA Restricted Certificates, the
Opinions of Counsel or other certification described in clause (ii) above. The
costs of any of the foregoing representation letters, certifications or Opinions
of Counsel shall not be borne by any of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Underwriters, the Initial Purchasers, the
Certificate Registrar or the Trust Fund. With respect to transfers of Book-Entry
Certificates only, to the extent the purchase or holding of a Certificate
described in this Section 5.02(c) would be restricted by ERISA, the Code or
Similar Law, each Certificate Owner of such Certificate shall be deemed to
represent that it is not a Person specified in clause (i)(a) or (i)(b) above and
therefore shall not be required pursuant to this Section 5.02(c) to deliver to
the Certificate Registrar the representation letter in the form of Exhibit E
attached hereto described in clause (i) above, or the Opinion of Counsel or
other certification described in clause (ii) above. Any transfer, sale, pledge
or other disposition of any such Certificates that would constitute or result in
a prohibited transaction under ERISA, Section 4975 of the Code or any Similar
Law, or would otherwise violate the provisions of this Section 5.02(c) shall be
deemed absolutely null and void ab initio, to the extent permitted under
applicable law.
Each person owning a beneficial interest in a Certificate shall be
deemed to represent that neither such Person nor any owner of a five percent or
greater interest in such Person is an employer with employees covered by the
General Electric Pension Trust.
Any transfer, sale, pledge or other disposition of any such
Certificates that would constitute or result in a prohibited transaction under
ERISA, Section 4975 of the Code or any Similar Law, or would otherwise violate
the provisions of this Section 5.02(c) shall be deemed absolutely null and void
ab initio, to the extent permitted under applicable law.
So long as any of the Class of Certificates remains outstanding, the
Master Servicer will make available, or cause to be made available, upon
request, to any Holder and any Person to whom any such Certificate of any such
Class of Certificates may be offered or sold, transferred, pledged or otherwise
disposed of by such Holder, information with respect to the Master Servicer, the
Special Servicer or the Mortgage Loans reasonably necessary to the provision of
an Opinion of Counsel described in this Section 5.02(c).
(d) (i) Each Person who has or who acquires any Ownership Interest
in a Residual Certificate shall be deemed by the acceptance or acquisition of
such Ownership Interest to have agreed to be bound by the following provisions
and to have irrevocably authorized the Trustee under clause (ii) below to
deliver payments to a Person other than such Person. The rights of each Person
acquiring any Ownership Interest in a Residual Certificate are expressly subject
to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in
a Residual Certificate shall be a Permitted Transferee and shall
promptly notify the Trustee and the REMIC Administrator of any
change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership
Interest in a Residual Certificate (other than in connection with
the initial issuance thereof or the transfer thereof among the
Depositor and its Affiliates), the Certificate Registrar shall
require delivery to it, and shall not register the Transfer of any
Residual Certificate until its receipt of, an affidavit and
agreement substantially in the form attached hereto as Exhibit C-1
(a "Transfer Affidavit and Agreement") from the proposed Transferee,
in form and substance satisfactory to the Certificate Registrar,
representing and warranting, among other things, that such
Transferee is a Permitted Transferee, that it is not acquiring its
Ownership Interest in the Residual Certificate that is the subject
of the proposed Transfer as a nominee, trustee or agent for any
Person that is not a Permitted Transferee, that for so long as it
retains its Ownership Interest in a Residual Certificate it will
endeavor to remain a Permitted Transferee, and that it has reviewed
the provisions of this Section 5.02(d) and agrees to be bound by
them.
(C) Notwithstanding the delivery of a Transfer Affidavit and
Agreement by a proposed Transferee under clause (B) above, if the
Certificate Registrar has actual knowledge that the proposed
Transferee is not a Permitted Transferee, no Transfer of an
Ownership Interest in a Residual Certificate to such proposed
Transferee shall be effected.
(D) Except in connection with the initial issuance of the
Residual Certificates or any transfer thereof among the Depositor
and its Affiliates, each Person holding or acquiring any Ownership
Interest in a Residual Certificate shall agree (1) to require a
Transfer Affidavit and Agreement from any prospective Transferee to
whom such Person attempts to transfer its Ownership Interest in such
Residual Certificate and (2) not to transfer its Ownership Interest
in such Residual Certificate unless it provides to the Certificate
Registrar a certificate substantially in the form attached hereto as
Exhibit C-2 stating that, among other things, it has no actual
knowledge that such prospective Transferee is not a Permitted
Transferee.
(ii) If any purported Transferee shall become a Holder of a Residual
Certificate in violation of the provisions of this Section 5.02(d), then
the last preceding Holder of such Residual Certificate that was in
compliance with the provisions of this Section 5.02(d) shall be restored,
to the extent permitted by law, to all rights as Holder thereof
retroactive to the date of registration of such Transfer of such Residual
Certificate. None of the Trustee, the Master Servicer, the Special
Servicer, the REMIC Administrator or the Certificate Registrar shall be
under any liability to any Person for any registration of Transfer of a
Residual Certificate that is in fact not permitted by this Section 5.02(d)
or for making any payments due on such Certificate to the Holder thereof
or for taking any other action with respect to such Holder under the
provisions of this Agreement.
(iii) The REMIC Administrator shall make available to the IRS and
those Persons specified by the REMIC Provisions all information necessary
to compute any tax imposed as a result of the Transfer of an Ownership
Interest in a Residual Certificate to any Person who is a Disqualified
Organization or a nominee, agent or middleman thereof, including the
information described in Treasury Regulations Sections 1.860D-1(b)(5) and
1.860E-2(a)(5) with respect to the "excess inclusions" of such Residual
Certificate. The Person holding such Ownership Interest shall be
responsible for the reasonable compensation of the REMIC Administrator for
providing such information.
(e) Subject to the restrictions on transfer and exchange set forth
in this Section 5.02, the Holder of any Definitive Certificate may transfer or
exchange the same in whole or in part (with a Denomination equal to any
authorized denomination) by surrendering such Certificate at the Certificate
Registrar's office or at the office of any successor Certificate Registrar or
transfer agent appointed by the Certificate Registrar, together with an
instrument of assignment or transfer (executed by the Holder or its duly
authorized attorney), in the case of transfer, and a written request for
exchange in the case of exchange. Subject to the restrictions on transfer set
forth in this Section 5.02 and Depository Rules, any Certificate Owner owning a
beneficial interest in a Non-Registered Certificate may cause the Certificate
Registrar to request that the Depository exchange such Certificate Owner's
beneficial interest in a Book-Entry Certificate for a Definitive Certificate or
Certificates. Following a proper request for transfer or exchange, the
Certificate Registrar shall, execute and deliver at such offices or at the
office of such transfer agent, as the case may be, to the transferee (in the
case of transfer) or Holder (in the case of exchange) or send by first class
mail (at the risk of the transferee in the case of transfer or Holder in the
case of exchange) to such address as the transferee or Holder, as applicable,
may request, a Definitive Certificate or Certificates, as the case may require,
for a like aggregate Denomination and in such Denomination or Denominations as
may be requested.
(f) In the event a Responsible Officer of the Certificate Registrar
becomes aware that a Definitive Certificate or a beneficial interest in a
Book-Entry Certificate representing a Non-Registered Certificate is being held
by or for the benefit of a Person who is not an Institutional Accredited
Investor, or that such holding is unlawful under the laws of a relevant
jurisdiction, then the Certificate Registrar shall have the right to void such
transfer, if permitted under applicable law, or to require the investor to sell
such Definitive Certificate or beneficial interest in such Book-Entry
Certificate to an Institutional Accredited Investor within 14 days after notice
of such determination and each Certificateholder by its acceptance of a
Certificate authorizes the Certificate Registrar to take such action.
(g) Every Certificate presented or surrendered for transfer or
exchange shall (if so required by the Certificate Registrar) be duly endorsed
by, or be accompanied by a written instrument of transfer in the form
satisfactory to the Certificate Registrar duly executed by, the Holder thereof
or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange
of Certificates, but the Trustee or the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates. In
addition, in connection with any transfer to an Institutional Accredited
Investor, the transferor shall reimburse the Trust Fund for any costs (including
the cost of the Certificate Registrar's counsel's review of the documents and
any legal opinions, submitted by the transferor or transferee to the Certificate
Registrar as provided herein) incurred by the Certificate Registrar in
connection with such transfer.
(i) Subsequent to the initial issuance of the Certificates, the
Trustee shall be responsible for the preparation of physical Certificates in
connection with any transfer or exchange; provided that the correct form of
Certificate of each Class shall be provided by the Depositor to the Trustee on
diskette on or about the Closing Date. All Certificates surrendered for transfer
and exchange shall be physically canceled by the Certificate Registrar, and the
Certificate Registrar shall hold or destroy such canceled Certificates in
accordance with its standard procedures.
(j) The Certificate Registrar shall be required to provide the
Depositor and the REMIC Administrator with an updated copy of the Certificate
Register on or about January 1 of each year, commencing January 1, 2006, and
shall be required to provide the Depositor, the Master Servicer, the Special
Servicer or the REMIC Administrator with an updated copy of the Certificate
Register at other times promptly upon written request therefor.
(k) If a Person is acquiring any Non-Registered Certificate or
interest therein as a fiduciary or agent for one or more accounts, such Person
shall be required to deliver to the Certificate Registrar (or, in the case of a
Book-Entry Certificate, to the Certificate Owner that is transferring such
interest) a certification to the effect that, and such other evidence as may be
reasonably required by the Trustee (or such Certificate Owner) to confirm that,
it has (i) sole investment discretion with respect to each such account and (ii)
full power to make the acknowledgments, representations, warranties,
certification and agreements with respect to each such account as set forth in
subsections (b), (c) and (d), as applicable, of this Section 5.02.
(l) Each investor in the Certificates will be deemed, by its
investment in such Certificates, to represent that neither (a) the investor nor
(b) any owner of a five percent or greater interest in the investor is an
employer with employees covered by the General Electric Pension Trust. Any
transfer in violation of this deemed representation will be void ab initio.
(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 X-0, Xxxxx X-0X, Xxxxx X-0X, Class A-SBFL,
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 Q, Class XC and Class XP Certificates shall initially be issued
as one or more Certificates registered in the name of the Depository or its
nominee and, except as provided in subsection (c) below, transfer of such
Certificates may not be registered by the Certificate Registrar unless such
transfer is to a successor Depository that agrees to hold such Certificates for
the respective Certificate Owners with Ownership Interests therein. Such
Certificate Owners shall hold and transfer their respective Ownership Interests
in and to such Certificates through the book-entry facilities of the Depository
and, except as provided in subsection (c) below, shall not be entitled to fully
registered, physical Certificates ("Definitive Certificates") in respect of such
Ownership Interests. All transfers by Certificate Owners of their respective
Ownership Interests in the Book-Entry Certificates shall be made in accordance
with the procedures established by the Depository Participant or brokerage firm
representing each such Certificate Owner (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, Class R-II or Class
R-TM 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, Class R-II and Class R-TM Certificates, from time to time upon the
request of the Master Servicer, the Trustee shall provide the Master Servicer
with a list of the Certificateholders recorded in the Certificate Register.
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER, THE SPECIAL SERVICER AND THE
REMIC ADMINISTRATOR
Section 6.01 Liability of the Depositor, the Master Servicer, the
Special Servicer and the REMIC Administrator.
The Depositor, the Master Servicer, the Special Servicer and the
REMIC Administrator shall be liable in accordance herewith only to the extent of
the respective obligations specifically imposed upon and undertaken by the
Depositor, the Master Servicer, the Special Servicer and the REMIC Administrator
herein.
Section 6.02 Merger, Consolidation or Conversion of the Depositor,
the Master Servicer, the Special Servicer or the REMIC Administrator.
(a) Subject to the following paragraph, the Depositor, the Master
Servicer, the Special Servicer and the REMIC Administrator each will keep in
full effect its existence, rights and franchises as a corporation or other
business organization under the laws of the jurisdiction of its organization,
and each will obtain and preserve its qualification to do business as a foreign
corporation or otherwise in each jurisdiction in which such qualification is or
shall be necessary to protect the validity and enforceability of this Agreement,
the Certificates or any of the Mortgage Loans and to perform its respective
duties under this Agreement.
(b) The Depositor, the Master Servicer, the Special Servicer and the
REMIC Administrator each may be merged or consolidated with or into any Person,
or transfer all or substantially all of its assets (which, as to the Master
Servicer and the Special Servicer, may be limited to all or substantially all of
its assets relating to the business of mortgage loan servicing) to any Person,
in which case any Person resulting from any merger or consolidation to which the
Depositor, the Master Servicer, the Special Servicer or the REMIC Administrator
shall be a party, or any Person succeeding to the business of the Depositor, the
Master Servicer, the Special Servicer or the REMIC Administrator, shall be the
successor of the Depositor, the Master Servicer, the Special Servicer or the
REMIC Administrator, as the case may be, hereunder, without the execution or
filing of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding; provided, however, that no
successor or surviving Person shall succeed to the rights of the Master Servicer
or the Special Servicer, unless such succession will not result in any
downgrade, qualification (if applicable) or withdrawal of the rating then
assigned by any Rating Agency to any Class of Certificates (as confirmed in
writing).
In accordance with Section 11.02, The Master Servicer and the
Special Servicer and such successor or surviving Person shall notify the
Depositor and the Trustee of any such merger, conversion or consolidation at
least two Business Days prior to the effective date thereof and shall provide
the Depositor and the Trustee with all information reasonably requested by the
Depositor to comply with its reporting obligation under Item 6.02 of Form 8-K
not later than the effective date of such merger, conversion or consolidation.
Section 6.03 Limitation on Liability of the Depositor, the Master
Servicer, the Special Servicer, the REMIC Administrator and Others.
(a) None of the Depositor, the Master Servicer, the Special
Servicer, the REMIC Administrator or any director, officer, employee or agent of
any of the foregoing shall be under any liability to the Trust, the
Certificateholders or any Companion Loan Holder(s) 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 Serviced Whole Loan is affected, the interests of the Certificateholders and
the related Companion Loan Holder(s) (as a collective whole taking into account
the subordination of any related Subordinate Interest(s)); provided, however,
that if a Serviced Whole Loan and/or a Companion Loan Holder is involved, such
expenses, costs and liabilities shall be payable out of the related Serviced
Whole Loan Custodial Account and shall also be payable out of the Certificate
Account if amounts on deposit in the related Serviced Whole Loan Custodial
Account are insufficient therefor hereunder and (i) so long as such expenses,
costs and liabilities do not relate solely to a Companion Loan or (ii) if such
expenses, costs and liabilities relate solely to a Companion Loan, only to the
extent of deposits in the Certificate Account related directly to the Serviced
Whole Loan. In such event, the legal expenses and costs of such action, and any
liability resulting therefrom, shall be expenses, costs and liabilities of the
Trust, and the Depositor, the Master Servicer, the Special Servicer and the
REMIC Administrator each shall be entitled to the direct payment of such
expenses or to be reimbursed therefor from the Certificate Account as provided
in Section 3.05(a) (or, if and to the extent the matter relates solely to a
Companion Loan, out of the related Serviced Whole Loan Custodial Account and out
of the Certificate Account to the extent of deposits therein related directly to
the Serviced Whole Loan). For the avoidance of doubt, such expenses, costs and
liabilities shall not be deemed to relate solely to a Companion Loan for the
sole reason that the related action was instituted by or against a Companion
Loan Holder.
(b) The KinderCare Portfolio Master Servicer, the KinderCare
Portfolio Special Servicer, the KinderCare Portfolio Depositor and the
KinderCare Portfolio Trustee, and any of their respective directors, officers,
employees or agents (collectively, the "KinderCare Portfolio Indemnified
Parties"), shall be indemnified by the Trust and held harmless against the
Trust's pro rata share (subject to the KinderCare Portfolio Intercreditor
Agreement) of any and all claims, losses, damages, penalties, fines,
forfeitures, reasonable legal fees and related costs, judgments, and any other
costs, liabilities, fees and expenses incurred in connection with any legal
action relating to the KinderCare Portfolio Whole Loan under the KinderCare
Portfolio Pooling Agreement or this Agreement (but excluding any such losses
allocable to the KinderCare Portfolio Pari Passu Note A-1), reasonably requiring
the use of counsel or the incurring of expenses other than any losses incurred
by reason of any KinderCare Portfolio Indemnified Party's willful misfeasance,
bad faith or negligence in the performance of duties or by reason of negligent
disregard of obligations and duties under the KinderCare Portfolio Pooling
Agreement. The indemnification provided herein shall survive the termination of
this Agreement and the termination or resignation of the KinderCare Portfolio
Master Servicer, the KinderCare Portfolio Trustee and the KinderCare Portfolio
Special Servicer.
(c) The Torre Mayor Master Servicer, the Torre Mayor Special
Servicer, the Torre Mayor Depositor and the Torre Mayor Trustee, and any of
their respective directors, officers, employees or agents (collectively, the
"Torre Mayor Indemnified Parties"), shall be indemnified by the Trust and held
harmless against the Trust's pro rata share (subject to the Torre Mayor
Intercreditor Agreements) of any and all claims, losses, damages, penalties,
fines, forfeitures, reasonable legal fees and related costs, judgments, and any
other costs, liabilities, fees and expenses incurred in connection with any
legal action relating to the Torre Mayor Whole Loan under the Torre Mayor
Pooling Agreement or this Agreement (but excluding any such losses allocable to
the Torre Mayor Pari Passu Note A-1), reasonably requiring the use of counsel or
the incurring of expenses other than any losses incurred by reason of any Torre
Mayor Indemnified Party's willful misfeasance, bad faith or negligence in the
performance of duties or by reason of negligent disregard of obligations and
duties under the Torre Mayor Pooling Agreement. The indemnification provided
herein shall survive the termination of this Agreement and the termination or
resignation of the Torre Mayor Master Servicer, the Torre Mayor Trustee and the
Torre Mayor Special Servicer.
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 and, if a Serviced Whole Loan is involved, Serviced
Companion Loan Securities, 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 Serviced Whole Loan Custodial Account any amount
required to be so deposited under this Agreement that continues unremedied
for three Business Days following the date on which such deposit was first
required to be made, but in no event later than the Master Servicer
Remittance Date before the related Distribution Date, or (B) to deposit
into, or to remit to the Trustee for deposit into, the Distribution
Account on any Master Servicer Remittance Date, the full amount of any
Master Servicer Remittance Amount and Withheld Amounts, respectively,
required to be so deposited or remitted under this Agreement on such date,
or (C) any failure by the Master Servicer to remit to any holder of a
Serviced Companion Loan, 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 Serviced Whole Loan Custodial Account or the applicable REO Account any
amount required to be so deposited or remitted under this Agreement that
continues unremedied for two Business Days following the date on which
such deposit or remittance was first required to be made, but in no event
later than two Business Days before the related Distribution Date; or
(iii) any failure by the Master Servicer to remit to the Trustee for
deposit into the Distribution Account, on any Master Servicer Remittance
Date, the full amount of P&I Advances required to be made on such date
unless wired by 10:00 a.m. on the Distribution Date; provided, however,
that if the Master Servicer fails to make any deposit contemplated by this
Section 7.01(a)(iii), including any P&I Advance, which deposit is required
to be made by the Master Servicer on any Master Servicer Remittance Date
(without regard to any grace period), then the Master Servicer shall pay
to the Trustee, for the account of the Trustee, interest on such late
remittance at the Reimbursement Rate from and including such Master
Servicer Remittance Date to but excluding the related Distribution Date;
or
(iv) any failure by the Master Servicer to timely make any Servicing
Advance required to be made by it pursuant to this Agreement, which
failure continues unremedied for a period of three Business Days following
the date on which notice shall have been given to the Master Servicer by
the Trustee or by any other party to this Agreement, as provided in
Section 3.11(f); or
(v) any failure by the Special Servicer to timely direct the Master
Servicer to make any Servicing Advance (including any Emergency Advance)
required to be made by the Master Servicer at its direction pursuant to
this Agreement, which failure is not remedied by providing direction to
the Master Servicer within three Business Days following the date on which
notice has been given to the Special Servicer by the Trustee as provided
in Section 3.11(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 or Serviced Companion Loan Securities 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 or Serviced Companion Loan
Securities, 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 above as items (iv) through (xiii) shall constitute
an Event of Default only with respect to the relevant party; provided that if a
single entity acts or any two or more Affiliates act as Master Servicer, Special
Servicer and REMIC Administrator, or in any two or more of the foregoing
capacities, an Event of Default in one capacity (other than an event described
in clauses (xii) or (xiii)) will constitute an Event of Default in each such
capacity.
(b) If any Event of Default with respect to the Master Servicer or
the Special Servicer (in either case, for purposes of this Section 7.01(b), the
"Defaulting Party") shall occur and be continuing, then, and in each and every
such case, so long as the Event of Default shall not have been remedied, the
Depositor or the Trustee may, and (other than with respect to the Events of
Default listed in clauses (xii) and clause (xiii) above) at the written
direction of the Holders of Certificates entitled to at least 51% of the Voting
Rights, or if the relevant Event of Default is the one described in clause (xi)
of subsection (a) above, the Trustee shall, terminate, by notice in writing to
the Defaulting Party (with a copy of such notice to each other party hereto),
all of the rights and obligations (subject to Section 3.11 and Section 6.03,
accruing from and after such notice) of the Defaulting Party under this
Agreement and in and to the Loans and the proceeds thereof (other than as a
Holder of a Certificate or a Companion Loan). With respect to each of the Event
of Defaults listed above as clauses (xii) and (xiii), the Trustee shall provide
written notice of such Event of Default to each Certificateholder and request
written direction of such Certificateholders whether they desire to terminate
the Defaulting Party; if no such direction is received from the Directing
Certificateholder or Holders of Certificates entitled to vote at least 51% of
the Voting Rights within ten Business Days after delivery of such notice by the
Trustee, 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).
Notwithstanding Section 7.01(a), if any Event of Default occurs that
affects a Serviced Pari Passu Companion Loan and the Master Servicer is not
otherwise terminated, the Trustee, at the direction of the trustee of another
Securitization related to such Serviced Pari Passu Companion Loan (at the
discretion of certificateholders holding at least 25% of the certificate balance
of the certificates issued by the related securitization trust) shall be
entitled to direct the Trustee to appoint a sub-servicer (or if a sub-servicer
is then sub-servicing such Serviced Whole Loan, to replace the current
sub-servicer to service such Serviced Whole Loan, but only if the current
sub-servicer has been terminated for cause in accordance with the related
sub-servicing agreement) with respect to all of the rights and obligations of
the Master Servicer under this Agreement related to such Serviced Whole Loan.
The Trustee shall appoint a replacement sub-servicer with respect to such
Serviced Whole Loan, selected by the Directing Certificateholder and the
Serviced Pari Passu Companion Loan Holder of such Serviced Whole Loan (or their
designees) but if the Directing Certificateholder and the related Serviced Pari
Passu Companion Loan Holder are not able to agree on a sub-servicer (or, if the
such Serviced Whole is being sub-serviced, a new sub-servicer) within 30 days,
then the Controlling Class Representative shall select such sub-servicer. The
Trustee shall notify the Controlling Class Representative and the applicable
Serviced Pari Passu Companion Loan Holders with respect to the appointment of a
replacement sub-servicer (and shall provide such non-proprietary information as
may be reasonably requested by and necessary in the reasonable determination of
any such Person in order to make a judgment, the expense of providing such
information to be an expense of the requesting Person); provided, that such
sub-servicer meets the eligibility requirements of Section 7.02 (including
receipt of a confirmation from each Rating Agency that such appointment would
not cause such Rating Agency to qualify, withdraw or downgrade any of its
then-current ratings on the Certificates and any related Serviced Companion Loan
Securities) and the eligibility requirements of each Serviced Companion Loan
Securitization Agreement.
(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 or
Serviced Companion Loan Securities and that are reasonably acceptable to the
Directing Certificateholder (any such Person so qualified, a "Qualified Bidder")
or, if three Qualified Bidders cannot be located, then from as many Persons as
the Trustee can determine are Qualified Bidders; provided that, at the Trustee's
request, the terminated Master Servicer shall supply the Trustee with the names
of Persons from whom to solicit such bids; and provided, further, that the
Trustee shall not be responsible if less than three or no Qualified Bidders
submit bids for the right to master service the Loans under this Agreement. Any
"Qualified Bidder" referenced hereunder shall be reasonably acceptable to the
Directing Certificateholder. The bid proposal shall require any Successful
Bidder (as defined below), as a condition of such bid, to enter into this
Agreement as successor Master Servicer, and to agree to be bound by the terms
hereof, within 45 days after the termination of Master Servicer. The 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) or Serviced
Companion Loan Securities; 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 and to the
Class A-SBFL Swap Counterparty.
(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 and the Class
A-SBFL Swap Counterparty 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 be under no obligation to take any action
to enforce the rights of the Trust Fund under the Class A-SBFL Swap Agreement
unless it is assured, in its sole discretion, that the costs and expenses of
such action(s) will be reimbursed by the Class A-SBFL Swap Counterparty or the
Holders of the Class A-SBFL Certificates, as applicable, or another party (other
than the Trust); 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, 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, 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 or Serviced Companion Loan Securities
would not be downgraded, qualified (if applicable) or withdrawn as a result of
such rating). If such corporation, trust company, bank or banking association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then, for the
purposes of this Section 8.06, the combined capital and surplus of such
corporation, trust company, bank or banking association shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. No Person shall become a successor trustee hereunder if
the succession of such Person would result in a downgrade, qualification (if
applicable) or withdrawal of any of the ratings then assigned by the Rating
Agencies to the Certificates. In case at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section 8.06, the Trustee
shall resign immediately in the manner and with the effect specified in Section
8.07. The corporation, trust company, bank or banking association serving as
Trustee may have normal banking and trust relationships with the Depositor, the
Master Servicer, the Special Servicer, the REMIC Administrator and their
respective Affiliates.
Section 8.07 Resignation and Removal of the Trustee.
(a) The Trustee may at any time resign and be discharged from the
trusts hereby created by giving written notice thereof to the Depositor, the
Master Servicer, the Special Servicer, the Class A-SBFL Swap Counterparty, the
REMIC Administrator and all Certificateholders and Companion Loan Holder(s).
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 Class A-SBFL Swap Counterparty, the
REMIC Administrator and the Certificateholders by the Depositor. If no successor
trustee shall have been so appointed and have accepted appointment within 30
days after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a successor
trustee.
(b) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 8.06 and shall fail to resign after
written request therefor by the Depositor or the Master Servicer, or if at any
time the Trustee shall become incapable of acting, or shall be adjudged bankrupt
or insolvent, or a receiver of the Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation, conservation or
liquidation, then the Depositor may remove the Trustee and appoint a successor
trustee acceptable to the Master Servicer by written instrument, in duplicate,
which instrument shall be delivered to the Trustee so removed and to the
successor trustee. A copy of such instrument shall be delivered to the Master
Servicer, the Special Servicer, the Directing Certificateholder, the Companion
Loan Holder(s), the REMIC Administrator and the Certificateholders by the
Depositor.
(c) The Holders of Certificates entitled to at least 33-1/3% of the
Voting Rights may at any time remove the Trustee and appoint a successor trustee
by written instrument or instruments, in triplicate, signed by such Holders or
their attorneys-in-fact duly authorized, one complete set of which instruments
shall be delivered to the Master Servicer, one complete set to the Trustee so
removed and one complete set to the successor so appointed; provided that the
Master Servicer, the Companion Loan Holder(s), 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 are 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 or Serviced Companion Loan Securities. The Master Servicer shall
give notice to the holder of the KinderCare Portfolio Pari Passu Note A-1 and
the holder of the Torre Mayor Pari Passu Note A-1 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. 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) or, in the case of the Cayman Collateral
Trustee, Section 8.10(f). The Cayman Collateral Trustee shall have no liability
for the actions of the Trustee or any other separate trustee or co-trustee or
from any inaction as a result of the Trustee failing to provide the Cayman
Collateral Trustee with any information that it would require to perform its
duties hereunder.
(f) The Cayman Collateral Trustee is hereby appointed and hereby
agrees to act as a co-trustee with respect to the Cayman Islands Mortgage Loan
and is hereby further appointed and agrees to further act as security trustee of
the Mortgage with respect to the Mortgaged Property securing the Cayman Islands
Mortgage Loan.
(g) The duties and obligations of the Cayman Collateral Trustee
shall be limited to holding the legal title to the Mortgage with respect to the
Mortgaged Property securing the Cayman Islands Mortgage Loan, holding the legal
title to the Cayman Islands Mortgage Loan jointly with the Trustee for the
exclusive use and benefit of all present and future Certificateholders and to
taking any actions that may be necessary or desirable for the purpose of
protecting, enforcing, perfecting and administering such security under the
terms of such Mortgage and/or this Agreement at the direction of the Trustee.
(h) The Trustee shall be responsible for providing all information
that the Cayman Collateral Trustee requires to perform its duties hereunder.
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 Serviced Loan as to which
the environmental testing contemplated by Section 3.09(c) revealed that either
of the conditions set forth in clauses (i) and (ii) of the first sentence
thereof was not satisfied or that any remedial, corrective or other further
action contemplated in such clauses is required (but only for so long as such
Mortgaged Property or the related Mortgage Loan is part of the Trust Fund), (F)
all documents constituting the Mortgage Files, including, without limitation,
any and all modifications, waivers and amendments of the terms of a Loan entered
into by the Master Servicer or the Special Servicer and delivered to the Trustee
pursuant to Section 3.20 (but, in each case, only for so long as the related
Mortgage Loan is part of the Trust Fund) and, (G) any Asset Status Report.
Copies of any and all of the foregoing items are to be available from the
Trustee upon request; however, the Trustee shall be permitted to require payment
of a sum sufficient to cover the reasonable costs and expenses of providing such
service.
In connection with providing access to or copies of the items
described in the immediately preceding paragraph of this Section 8.12(b), the
Trustee may require, unless the Depositor directs otherwise, (i) in the case of
Certificate Owners, a written confirmation executed by the requesting Person, in
form reasonably satisfactory to the Trustee, generally to the effect that such
Person is a beneficial holder of Certificates and will keep such information
confidential and (ii) in the case of any prospective purchaser of a Certificate
or, in the case of a Book-Entry Certificate, of a beneficial ownership interest
therein, a written confirmation executed by the requesting Person, in form
reasonably satisfactory to the Trustee, generally to the effect that such Person
is a prospective purchaser of a Certificate or a beneficial ownership interest
therein, is requesting the information for use in evaluating a possible
investment in Certificates and will otherwise keep such information
confidential. All Certificateholders, by acceptance of their Certificates, shall
be deemed to have agreed to keep such information confidential, except to the
extent that the Depositor grants written permission to the contrary.
Notwithstanding the preceding sentences of this paragraph, the Trustee shall
have no responsibility for the accuracy, completeness or sufficiency of any
information so made available or furnished by it in the manner described in the
immediately preceding paragraph.
Section 8.13 Maintenance of Mortgage File.
Except for the release of items in the Mortgage File contemplated by
this Agreement, including, without limitation, as necessary for the enforcement
of the holder's rights and remedies under the related Mortgage Loan, the Trustee
covenants and agrees that it shall maintain each Mortgage File in the State of
Minnesota, and that it shall not move any Mortgage File outside the State of
Minnesota, other than as specifically provided for in this Agreement, unless it
shall first obtain and provide, at the expense of the Trustee, an Opinion of
Counsel addressed to the Depositor and the Rating Agencies to the effect that
the Trustee's first priority interest in the Mortgage Notes has been duly and
fully perfected under the applicable laws and regulations of such other
jurisdiction.
ARTICLE IX
TERMINATION
Section 9.01 Termination Upon Repurchase or Liquidation of All
Mortgage Loans.
Subject to Section 9.02, the Trust and the respective obligations
and responsibilities under this Agreement of the Depositor, the Master Servicer,
the Special Servicer, the Trustee and the REMIC Administrator (other than the
obligations of the Trustee to provide for and make payments to
Certificateholders as hereafter set forth and the obligations of the REMIC
Administrator to file the final Tax Returns for each of the Torre Mayor Loan
REMIC, 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 and the Torre Mayor
Loan REMIC 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 and the Torre Mayor Loan REMIC, plus (B) the appraised
value of each REO Property, if any, included in REMIC I and the Torre Mayor Loan
REMIC (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 and the Torre Mayor Loan REMIC; 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 and the Torre Mayor Loan REMIC 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 and the Torre Mayor Loan REMIC 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 and the Torre Mayor Loan REMIC 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 Serviced Whole Loan is involved, in the
related Serviced Whole Loan Custodial Account. In addition, the Master Servicer
shall transfer all amounts required to be transferred to the Distribution
Account on such Master Servicer Remittance Date from the Certificate Account or
if a Serviced Whole Loan is involved, the related Serviced Whole Loan Custodial
Account pursuant to the first paragraph of Section 3.04(e). Upon confirmation
that such final deposits have been made, the Trustee shall release or cause to
be released to the purchaser or its designee, the Mortgage Files for the
remaining Mortgage Loans and shall execute all assignments, endorsements and
other instruments furnished to it by the purchaser, as shall be necessary to
effectuate transfer of the Mortgage Loans and REO Properties remaining in REMIC
I and the Torre Mayor Loan REMIC.
Following the date on which the Class Principal Balances of the
Investment Grade Sequential Pay Certificates are reduced to zero, the Sole
Pooled Certificateholder shall have the right to exchange all of such
Certificates for all of the Mortgage Loans and each REO Property remaining in
the Trust Fund by giving written notice to all the parties hereto and each
Controlling Holder no later than 60 days prior to the anticipated date of
exchange. In the event that the Holders voluntarily participate in the exchange
described above, such exchange shall occur by means of an arms length
transaction for which such Holder shall have received, immediately upon the
consummation of the exchange described in the next sentence, consideration
(which consideration may include (among other things): cash (or its equivalent),
a beneficial ownership interest in the related Mortgage Loan in the form of a
participation or any combination thereof) for its beneficial ownership interest
in the Trust Fund and its related interest in any REMIC created hereunder equal
to the value of the Certificates held by such Holder. Further, in the event that
the Sole Pooled Certificateholder elects to exchange all of its Certificates for
all of the Mortgage Loans and each REO Property (or the pro rata portion thereof
allocable to such Holders) remaining in the Trust in accordance with the second
preceding sentence, the Sole Pooled Certificateholder, not later than the
Distribution Date on which the final distribution on the Certificates is to
occur, shall deposit in the Certificate Account an amount in immediately
available funds equal to all amounts due and owing to the Depositor, the Master
Servicer, the Special Servicer and the Trustee hereunder through the date of the
liquidation of the Trust Fund that may be withdrawn from the Certificate
Account, or an escrow account acceptable to the respective parties hereto,
pursuant to Section 3.05(a) or that may be withdrawn from the Distribution
Account pursuant to Section 3.05(b), but only to the extent that such amounts
are not already on deposit in the Certificate Account. In addition, the Master
Servicer shall transfer all amounts required to be transferred to the Torre
Mayor Loan REMIC Distribution Account and 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 the Torre Mayor Loan REMIC and 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, the
Torre Mayor Loan REMIC Regular Interest and the Corresponding REMIC I Regular
Interests.
Notice of any termination shall be given promptly by the Trustee by
letter to the Class A-SBFL Swap Counterparty and 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 the Torre Mayor Loan
REMIC and 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 Torre Mayor Loan REMIC Regular Interest
and 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 and the Torre Mayor Loan REMIC as provided in Section 9.01,
the Trust (and, accordingly, the Torre Mayor Loan REMIC, 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 the Torre Mayor Loan REMIC, REMIC I or REMIC II as
defined in Section 860F of the Code or cause and the Torre Mayor Loan REMIC,
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 the Torre Mayor Loan REMIC, 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 the Torre Mayor Loan REMIC and REMIC I (other
than the Torre Mayor Loan REMIC Regular Interest) 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 the Torre Mayor Loan
REMIC and 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 the Torre Mayor Loan REMIC, REMIC I and REMIC II shall terminate at
that time.
In the event the Trust Fund is to be terminated while the Class
A-SBFL Swap Contract is still in effect, the Trustee shall promptly notify the
Class A-SBFL Swap Counterparty in writing of the date on which the Trust Fund is
to be terminated and the notional amount of the Class A-SBFL Swap Contract will
be reduced to zero on such date. Based on the date of termination, the Trustee
shall calculate the Class A-SBFL Net Swap Payment, if any, as specified in
Section 3.32, and prior to any final distribution to the Holders of the Class
A-SBFL Certificates pursuant to Section 9.01, shall pay such Class A-SBFL Net
Swap Payment if any, to the Class A-SBFL Swap Counterparty. In the event that
any fees (including termination fees) will be payable to the Class A-SBFL Swap
Counterparty in connection with such termination, such fees will be payable to
the Class A-SBFL Swap Counterparty solely from amounts remaining in the
applicable Class A-SBFL Floating Rate Account after all distributions, to the
Class A-SBFL Certificates are made pursuant to Section 9.01.
ARTICLE X
ADDITIONAL REMIC AND GRANTOR TRUST PROVISIONS
Section 10.01 REMIC Administration.
(a) The REMIC Administrator shall elect to treat each of the Torre
Mayor Loan REMIC, REMIC I and REMIC II as a REMIC under the Code and, if
necessary, under Applicable State Law. Each such election will be made on Form
1066 or other appropriate federal or state Tax Returns for the taxable year
ending on the last day of the calendar year in which the Certificates are
issued.
(b) (i) The REMIC I Regular Interests are hereby designated as
"regular interests" (within the meaning of Section 860G(a)(1) of the Code), and
the residual interest in REMIC I, represented by the Class R-I Certificates, is
hereby designated as the sole Class of "residual interest" (within the meaning
of Section 860G(a)(2) of the Code), in REMIC I. The Class XC, Class XP, Class
A-1, Class A-2, Class A-3A, Class X-0X, Xxxxx X-0, Class A-1A, Class A-M, Class
A-J, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J,
Class K, Class L, Class M, Class N, Class O, Class P and Class Q Certificates
and the Class a-SBFL Regular Interest 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 interest"
(within the meaning of Section 860G(a)(2) of the Code), in REMIC II. For the
avoidance of doubt, the Class XC and Class XP Certificates represent "specified
portions," within the meaning of Treasury Regulations Section 1.860G-1(a)(2), of
the interest payments on the REMIC I Regular Interests corresponding to their
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.
(ii) The Torre Mayor Loan REMIC Regular Interest is hereby
designated as the "regular interest" (within the meaning of Section
860G(a)(1) of the Code) and the Torre Mayor Loan REMIC Residual Interest,
represented by the Class R-TM Certificates is hereby designated as the
sole class of "residual interest" (within the meaning of Section
860G(a)(2) of the Code) in the Torre Mayor Loan REMIC.
(c) The Closing Date is hereby designated as the "startup day" of
each of the Torre Mayor Loan REMIC, 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
A-SBFL Certificates and the Class XP Certificates), the Class A-SBFL Regular
Interest and the Torre Mayor Loan REMIC Regular Interest is the Rated Final
Distribution Date and (ii) the Class XP Certificates is the Distribution Date in
March 2013.
(d) The REMIC Administrator shall maintain separate accounting with
respect to the Torre Mayor Loan REMIC sufficient (i) to account for
distributions on the Torre Mayor Loan REMIC Regular Interest as assets of REMIC
I, (ii) to pay or cause to be paid any federal, state or local income tax
attributable to the Torre Mayor Loan REMIC from payments received on or with
respect to the Torre Mayor Pari Passu Note A-2 Mortgage Loan, and (iii) subject
to the deemed distribution of Excess Liquidation Proceeds with respect to the
Torre Mayor Pari Passu Note A-2 Mortgage Loan to the Excess Liquidation Proceeds
Account pursuant to Section 3.04(c)(iv), to cause any payments on the Torre
Mayor Pari Passu Note A-2 Mortgage Loan in excess amounts distributable in
respect of the Torre Mayor Loan REMIC Regular Interest to be distributed to the
Class R-TM Certificates.
(e) The REMIC Administrator is hereby designated as agent for the
Tax Matters Person of each of the Torre Mayor Loan REMIC, 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 the Torre Mayor
Loan REMIC, 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 the Torre Mayor Loan REMIC, REMIC I or REMIC II, and otherwise act
on behalf of each of the Torre Mayor Loan REMIC, 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 the Torre Mayor Loan REMIC, REMIC I and
REMIC II. Subject to Section 10.01(h), the legal expenses and costs of any
action described in this subsection (e) and any liability resulting therefrom
shall be expenses, costs and liabilities of the Trust, and the REMIC
Administrator shall be entitled to be reimbursed therefor out of any amounts on
deposit in the Distribution Account as provided by Section 3.05(b).
(f) The REMIC Administrator shall prepare and file or cause to be
prepared and filed, and the Trustee shall sign, all of the Tax Returns in
respect of each of the Torre Mayor Loan REMIC, REMIC I and REMIC II. The
expenses of preparing and filing such returns shall be borne by the REMIC
Administrator without any right of reimbursement therefor.
(g) The REMIC Administrator shall perform or cause to be performed
on behalf of each of the Torre Mayor Loan REMIC, REMIC I and REMIC II all
reporting and other tax compliance duties that are the responsibility of each
such REMIC under the Code, the REMIC Provisions or other compliance guidance
issued by the IRS or any other taxing authority under Applicable State Law.
Included among such duties, the REMIC Administrator shall provide, or cause to
be provided: (i) to any Transferor of a Residual Certificate and the IRS, such
information as is necessary for the application of any tax relating to the
transfer of a Residual Certificate to any Person who is a Disqualified
Organization; (ii) to the Certificateholders, such information or reports as are
required by the Code or the REMIC Provisions, including, without limitation,
reports relating to interest, original issue discount and market discount or
premium (using the Prepayment Assumption as required); and (iii) with respect to
REMIC II, Form 8811, or other applicable form, to the IRS, and the name, title,
address and telephone number of the Person who will serve as the representative
of REMIC II.
(h) The REMIC Administrator shall perform its duties more
specifically set forth hereunder in a manner consistent with maintaining the
status of each of the Torre Mayor Loan REMIC, 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 any of the Torre Mayor Loan REMIC, 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 the Torre Mayor Loan REMIC, 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 the Torre Mayor Loan REMIC, REMIC I or REMIC
II, or causing the Torre Mayor Loan REMIC, 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 the
Torre Mayor Loan REMIC, 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 the Torre Mayor Loan REMIC,
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 the Torre Mayor Loan REMIC, 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 Torre Mayor Loan REMIC Distribution Account or the REMIC I
Distribution Account, as applicable.
(i) The REMIC Administrator and, to the extent that records are
maintained thereby in the normal course of its business, each of the other
parties hereto shall, for federal income tax purposes, maintain books and
records with respect to each of REMIC I and REMIC II on a calendar year and on
an accrual basis. Such records with respect to REMIC I shall include, for each
Distribution Date, the applicable REMIC I Principal Balance, REMIC I Remittance
Rate, and each category of distribution on or with respect to the REMIC I
Regular Interests and the REMIC I Residual Interest. Such records with respect
to the Torre Mayor Loan REMIC shall include, for each Distribution Date, the
Torre Mayor Pari Passu Note A-2 Mortgage Loan Balance and each other category of
distribution on or with respect to the Torre Mayor Loan REMIC Regular Interest
or the Class R-TM Certificates.
(j) Following the Startup Day therefor, the Trustee shall not accept
any contributions of assets to the Torre Mayor Loan REMIC, REMIC I or REMIC II
unless it shall have received an Opinion of Counsel (at the expense of the party
seeking to cause such contribution) to the effect that the inclusion of such
assets in such REMIC will not cause: (i) such REMIC to fail to qualify as a
REMIC at any time that any Certificates are outstanding; or (ii) the imposition
of any tax on such REMIC under the REMIC Provisions or other applicable
provisions of federal, state and local law or ordinances.
(k) None of the REMIC Administrator, the Master Servicer, the
Special Servicer or the Trustee shall consent to or, to the extent it is within
the control of such Person, permit: (i) the sale or disposition of any of the
Mortgage Loans (except in connection with (A) a breach of any representation or
warranty of 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 the Torre Mayor Loan REMIC, REMIC I or REMIC II, or (D) the
termination of the Trust pursuant to Article IX); (ii) the sale or disposition
of any investments in the Certificate Account or the REO Account for gain; or
(iii) the acquisition of any assets for the Trust Fund (other than a Mortgaged
Property acquired through foreclosure, deed-in-lieu of foreclosure or otherwise
in respect of a Defaulted Serviced Loan and other than Permitted Investments
acquired in connection with the investment of funds in the Certificate Account
or the REO Account); in any event unless it has received an Opinion of Counsel
(from and at the expense of the party seeking to cause such sale, disposition,
or acquisition) to the effect that such sale, disposition, or acquisition will
not cause: (x) the Torre Mayor Loan REMIC, 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 the Torre Mayor Loan REMIC, REMIC I or REMIC II under
the REMIC Provisions or other applicable provisions of federal, state and local
law or ordinances.
(l) Except as otherwise permitted by Section 3.17(a), none of the
REMIC Administrator, the Master Servicer, the Special Servicer or the Trustee
shall enter into any arrangement by which the Torre Mayor Loan REMIC, 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 the Torre Mayor Loan REMIC,
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 the Torre Mayor Loan REMIC,
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
(i) the Excess Interest and the Excess Interest Distribution Account and (ii)
the Class A-SBFL Regular Interest, the Class A-SBFL Swap Contract, the Class
A-SBFL Floating Rate Account and proceeds thereof shall each 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 each 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 (i) with respect to the Excess
Interest 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 and (ii) with respect to the Class A-SBFL Grantor Trust, to the Class
A-SBFL Certificateholders, their allocable shares of income and expense with
respect to the Class A-SBFL Regular Interest and the Class A-SBFL Swap Contract,
each 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 A-SBFL Certificateholders or
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 2006-1, 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.
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 of
this Agreement 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,
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.
As set forth on Schedule IX hereto, within 5 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 known by a
responsible officer 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 2 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.
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, 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 11.04(b) related to the timely
preparation and filing of Form 10-D is contingent upon the Master Servicer and
the Depositor 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.
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 (i) through (iv) above
that is required to be included on Form 10-K ("Additional Form 10-K Disclosure")
shall, pursuant to the paragraph immediately below, be reported by the parties
set forth on Schedule X to the Depositor and the Trustee and 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-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 known by a responsible officer 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 will 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, a duly authorized representative 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 11.05.
Promptly after filing with the Commission, the Trustee will make available on
its internet website a final executed copy of each Form 10-K. 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, 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 11.05 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.
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 any
Serviced Companion 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 any Serviced Companion 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 Serviced 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. With respect to any Non-Serviced Mortgage Loan serviced
under a Non-Serviced Mortgage Loan Pooling Agreement, the Master Servicer will
use its reasonable efforts to procure a Xxxxxxxx-Xxxxx back-up certification
from the Non-Serviced Mortgage Loan Master Servicer, Non-Serviced Mortgage Loan
Special Servicer and the Non-Serviced Mortgage Loan Trustee in form and
substance similar to a Performance Certification. 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 certificates 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 known, by a responsible officer
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 will approve, as to form and substance, or disapprove,
as the case may be, the inclusion of the Form 8-K Disclosure Information 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, 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 the Master Servicer or Depositor needed to prepare, arrange
for execution or file such Form 8-K, not resulting from its own negligence, bad
faith or willful misconduct.
The Master Servicer, the Special Servicer and the Trustee shall
promptly notify (and 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 Sub-Servicer and each Servicing Function
Participant with which, in each case, it has entered into a servicing
relationship with respect to the Mortgage Loans (other than a party to this
Agreement) to promptly notify) the Depositor and the Trustee, but in no event
later than one Business Day after its occurrence, of any Reportable Event of
which it has knowledge.
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 file a Form 15 Suspension Notification relating to the automatic
suspension of reporting in respect of the Trust under the Exchange Act. At any
time 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.
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. The Master Servicer and the Special Servicer shall,
and 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 with which it has entered into a
servicing relationship with respect to the Mortgage Loans to, forward a copy of
each such statement to the Rating Agencies and the Directing Certificateholder.
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. No Certifying Servicer shall be
required to cause the delivery of any such Officer's Certificate until April 15
in any given year so long as it has received written confirmation from the
Depositor that a Report on Form 10-K is not required to be filed in respect of
the Trust for the preceding calendar year.
Section 11.10 Annual Reports on Assessment of Compliance with
Servicing Criteria. (a) On or before March 15 of each year, commencing in March
2007, the Master Servicer, the Special Servicer and the Trustee, each at its own
expense, shall furnish, and each such party shall use commercially reasonable
efforts (including enforcement as such term is described in Section 3.22(c)) to
cause each Servicing Function Participant with which it has entered into a
servicing relationship with respect to the Mortgage Loans to furnish (each, a
"Reporting Servicer"), to the Trustee and the Depositor, a report on an
assessment of compliance with the Relevant Servicing Criteria that contains (A)
a statement by such Reporting Servicer of its responsibility for assessing
compliance with the Relevant Servicing Criteria, (B) a statement that such
Reporting Servicer used the Relevant Servicing Criteria as the basis for such
report, (C) such Reporting Servicer's assessment of compliance with the Relevant
Servicing Criteria as of and for the period ending the end of the fiscal year
covered by the Form 10-K required to be filed pursuant to Section 11.05,
including, if there has been any material instance of noncompliance with the
Relevant Servicing Criteria, a discussion of each such failure and the nature
and status thereof, and (D) a statement that a registered public accounting firm
has issued an attestation report on such Reporting Servicer's assessment of
compliance with the Relevant Servicing Criteria as of and for such period.
Each such report shall be addressed to the Depositor and signed by
an authorized officer of the applicable company, and shall address each of the
Relevant Servicing Criteria specified on a certification substantially in the
form of Schedule VIII hereto delivered to the Depositor on the Closing Date.
Promptly after receipt of each such report, (i) the Depositor shall review each
such report and, if applicable, consult with each Reporting Servicer as to the
nature of any material instance of noncompliance with the Servicing Criteria
applicable to it, and (ii) the Trustee shall confirm that the assessments, taken
individually address the Relevant Servicing Criteria and notify the Depositor of
any exceptions. No Reporting Servicer shall be required to cause the delivery of
any such assessments until April 15 in any given year so long as it has received
written confirmation from the Depositor that a Report on Form 10-K is not
required to be filed in respect of the Trust for the preceding calendar year.
(b) On the Closing Date, the Master Servicer, the Special Servicer
and the Trustee shall furnish to the Depositor and the Trustee the Relevant
Servicing Criteria applicable to it, in the form of Schedule VIII hereto
appropriately completed (indicating thereon any Servicing Function Participant
that the Master Servicer, Special Servicer or Trustee has entered into a
servicing relationship).
(c) No later than the end of each fiscal year for the Trust, the
Master Servicer and the Special Servicer shall notify the Trustee and the
Depositor 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 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, with a copy to the Rating Agencies, 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 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 (i)
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 or (ii) negligence,
bad faith or willful misconduct on the part of the Master Servicer, the Special
Servicer or the Trustee in the performance of such obligations.
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) negligence, bad faith or willful misconduct its part
in the performance of such obligations or (iii) 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) or the Performing
party's negligence, bad faith or willful misconduct in connection therewith. The
Master Servicer and Special Servicer shall use commercially reasonable efforts
(including enforcement as such term is described in Section 3.22(c)) to cause
each Additional Servicer or Servicing Function Participant, in each case, with
which it has entered into a servicing relationship with respect to the Mortgage
Loans to agree to the foregoing indemnification and contribution obligations.
This Section 11.12 shall survive the termination of this Agreement or the
earlier resignation or removal of the Master Servicer or the Special Servicer.
Section 11.13 Signatures; Article XI Notices. Each Form 8-K report
and Form 10-D report shall be signed by the Depositor. The Depositor shall
provide its signature to the Trustee by electronic or fax transmission (with
hard copy to follow by overnight mail) no later than the 13th calendar day
following the related Distribution Date for Form 10-D, and not later than noon
on the date of filing for Form 8-K (provided, that in each case the Trustee
shall not file the related form until the Depositor has given its approval
thereof). If a Form 8-K or Form 10-D cannot be filed on time or if a previously
filed Form 8-K or Form 10-D needs to be amended, the Trustee will follow the
procedures set forth in this Article XI.
With respect to any notice required to be delivered by the Trustee
to the Depositor pursuant to Article XI, the Trustee may deliver such notice,
notwithstanding any contrary provision in Section 12.05 via facsimile to (704)
386-1094, via email to Xxxxxxx.x.xxxxxX@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.
Section 11.15 Companion Loans. In the event that any Companion Loan
is securitized and the trust fund (or similar vehicle) into which such Companion
Loan is placed is then subject to the reporting requirements of the Exchange Act
(including without limitation, the requirements of the Xxxxxxxx-Xxxxx Act), each
of the Master Servicer and the Special Servicer hereby agree to provide
reasonable cooperation (including without limitation, the provision of
Xxxxxxxx-Xxxxx Certifications in the form set forth on Exhibit L) to enable such
trust fund to comply with such reporting requirements applicable to such trust
fund, and the Master Servicer and the Special Servicer shall require any
sub-servicer engaged by it to provide to the Master Servicer and the Special
Servicer, as applicable, and to the master servicer and special servicer, as
applicable, with respect to a securitization of a Companion Loan, a
certification that is substantially similar to the form of certificate attached
to this Agreement, as it relates to the servicing activities of such
sub-servicer, on which such Person and such Person's partners, representatives,
affiliates, members, managers, directors, officers, employees or agents can
rely.
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 Companion Loan Holder, (i) to cure any ambiguity, (ii)
to correct, modify or supplement any provision herein that may be defective or
may be inconsistent with any other provision herein, (iii) to add any other
provisions with respect to matters or questions arising hereunder that shall not
be inconsistent with the provisions hereof, (iv) to relax or eliminate any
requirement hereunder imposed by the REMIC Provisions if the REMIC Provisions
are amended or clarified such that any such requirement may be relaxed or
eliminated; (v) if such amendment, as evidenced by an Opinion of Counsel
delivered to the Trustee and the REMIC Administrator, is reasonably necessary to
comply with any requirements imposed by the Code or any successor or amendatory
statute or any temporary or final regulation, revenue ruling, revenue procedure
or other written official announcement or interpretation relating to federal
income tax laws or any such proposed action that, if made effective, would apply
retroactively to the Torre Mayor Loan REMIC, 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 the
Torre Mayor Loan REMIC, REMIC I or REMIC II; (vi) to modify, add to or eliminate
any provisions of Section 5.02(d)(i), (ii) and (iii); or (vii) for any other
purpose; provided that such amendment (other than any amendment for the specific
purposes described in clauses (v) and (vi) above) shall not, as evidenced by an
Opinion of Counsel obtained by or delivered to the Trustee, adversely affect in
any material respect the interests of any Certificateholder without such
Certificateholder's written consent; provided further that such amendment shall
not adversely affect in any material respect the rights and obligations of 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 a Companion Loan Holder 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) above) shall not result in a downgrade,
qualification (if applicable) or withdrawal of any rating then assigned to any
Class of Certificates by any Rating Agency or Serviced Companion Loan Securities
(as evidenced by written confirmation to such effect from each Rating Agency
obtained by or delivered to the Trustee).
(b) This Agreement may also be amended from time to time by the
mutual agreement of the parties hereto, with the consent of the Holders of
Certificates entitled to at least 51% of the Voting Rights allocated to the
affected Classes, for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Agreement or of modifying in
any manner the rights of the Holders of Certificates or the Companion Loan
Holders; provided, however, that no such amendment shall (i) reduce in any
manner the amount of, or delay the timing of, payments received or advanced on
the Mortgage Loans and any REO Properties that are required to be distributed on
any Certificate without the written consent of the Holder of such Certificate,
(ii) adversely affect in any material respect the interests of the Holders of
any Class of Certificates in a manner other than as described in clause (b)(i)
without the written consent of the Holders of all Certificates of such Class,
(iii) change the definition of the Servicing Standard, without the written
consent of the Holders of all Certificates outstanding, or (iv) modify the
provisions of this Section 12.01 without the written consent of the Holders of
all Certificates then outstanding. Notwithstanding any other provision of this
Agreement, for purposes of the giving or withholding of consents pursuant to
this Section 12.01, Certificates registered in the name of the Depositor, the
Master Servicer, the Special Servicer or any of their respective Affiliates
shall be entitled to the same Voting Rights with respect to matters described
above as they would if any other Person held such Certificates. For purposes of
this Section 12.01(b), a Class of Certificates is an "affected Class" if and
only if it would, as the result of any such amendment, experience any of the
effects described in clauses (i), (ii) and (iii) of this Section 12.01(b).
(c) At the direction of the Holders of Certificates entitled to 100%
of the Voting Rights allocated to the affected Classes, and with the agreement
of all of the parties hereto (none of which shall withhold its agreement unless
its obligations hereunder would be materially increased), the Agreement shall be
amended for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement or of modifying in any
manner the rights of the Holders of Certificates, including without limitation,
(i) to cause such Classes to be restructured, (ii) to create in connection with
any restructuring one or more new classes of Certificates, which may include,
without limitation, one or more classes of Certificates entitled to payments of
principal on a priority basis from collections in respect of some or all of the
Mortgage Loans, (iii) to make in connection with any such restructuring one or
more additional REMIC elections with respect to the Trust Fund, (iv) to provide
for the book-entry registration of any such existing or newly created classes of
Certificates, and (v) to provide for any holders of any Classes of
Non-Registered Certificates remaining as such after giving effect to such
amendment to receive or have the right to request to receive any statements,
reports or other information that the holders of the Class E, Class F, Class G,
Class H, Class J, Class K, Class L, Class M, Class N, Class O, Class P and Class
Q 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 E, Class F,
Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class O, Class P
and Class Q 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 the Torre Mayor Loan REMIC, REMIC I, REMIC
II or any REMIC in which a Companion Loan is included pursuant to the REMIC
Provisions or cause the Torre Mayor Loan REMIC, REMIC I, REMIC II or any REMIC
in which a Companion Loan is included to fail to qualify as a REMIC at any time
that any Certificates are outstanding or either Grantor Trust to fail to qualify
as a grantor trust at any time that any Certificates are outstanding.
(e) Promptly after the execution of any such amendment, the Trustee
shall furnish a copy of the amendment to each Certificateholder and each
Companion Loan Holder.
(f) It shall not be necessary for the consent of Certificateholders
under this Section 12.01 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to
such reasonable regulations as the Trustee may prescribe; provided that such
consents shall be in writing.
(g) The Trustee may but shall not be obligated to enter into any
amendment pursuant to this Section 12.01 that affects its rights, duties and
immunities under this Agreement or otherwise.
(h) The cost of any Opinion of Counsel to be delivered pursuant to
Section 12.01(a) or (d) shall be borne by the Person seeking the related
amendment, except that if the Trustee requests any amendment of this Agreement
in furtherance of the rights and interests of Certificateholders, the cost of
any Opinion of Counsel required in connection therewith pursuant to Section
12.01(a) or (d) shall be payable out of the Distribution Account.
(i) Notwithstanding any contrary provisions of this Agreement, this
Agreement may not be amended in a manner that would adversely affect the
distributions to the Class A-SBFL Swap Counterparty or the Class A-SBFL
Certificates or the rights of the Class A-SBFL Swap Counterparty under the Class
A-SBFL Swap Contract or the rights of the holders of the Class A-SBFL
Certificates without the consent of the Class A-SBFL Swap Counterparty and 100%
of the Holders of the Class A-SBFL Certificates.
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 Companion
Loan Holder 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 Companion Loan Holder shall have any
right to vote (except as expressly provided for herein) or in any manner
otherwise control the operation and management of the Trust Fund, or the
obligations of the parties hereto, nor shall anything herein set forth, or
contained in the terms of the Certificates, be construed so as to constitute the
Certificateholders and/ or the Companion Loan Holder(s) from time to time as
partners or members of an association; nor shall any Certificateholder or
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 Companion Loan
Holder previously shall have given to the Trustee a written notice of default
hereunder, and of the continuance thereof, as hereinbefore provided, and (except
in the case of a default by the Trustee) the Holders of Certificates entitled to
at least 25% of the Voting Rights shall have made written request upon the
Trustee to institute such action, suit or proceeding in its own name as Trustee
hereunder and shall have offered to the Trustee such reasonable indemnity as it
may require against the costs, expenses and liabilities to be incurred therein
or thereby, and the Trustee, for 60 days after its receipt of such notice,
request and offer of indemnity, shall have neglected or refused to institute any
such action, suit or proceeding. It is understood and intended, and expressly
covenanted by each Certificateholder with every other Certificateholder and the
Trustee, that no one or more Holders of Certificates shall have any right in any
manner whatsoever by virtue of any provision of this Agreement to affect,
disturb or prejudice the rights of the Holders of any other of such
Certificates, or to obtain or seek to obtain priority over or preference to any
other such Holder, which priority or preference is not otherwise provided for
herein, or to enforce any right under this Agreement, except in the manner
herein provided and for the equal, ratable and common benefit of all
Certificateholders. For the protection and enforcement of the provisions of this
Section 12.03(c), each and every Certificateholder and the Trustee shall be
entitled to such relief as can be given either at law or in equity.
Section 12.04 Governing Law.
This Agreement and the Certificates shall be construed in accordance
with the internal laws of the State of New York applicable to agreements made
and to be performed in said State, and the obligations, rights and remedies of
the parties hereunder shall be determined in accordance with such laws.
Section 12.05 Notices.
Any communications provided for or permitted hereunder shall be in
writing and, unless otherwise expressly provided herein, shall be deemed to have
been duly given when delivered to:
(i) in the case of Banc of America Commercial Mortgage Inc., 000
Xxxxx Xxxxx Xxxxxx, XX0-000-00-00, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000,
Attention: Xxxxxxx Xxxxx, telecopy number: (000) 000-0000 (with copies to
Xxxx Xxxxxxx, Esq., Assistant General Counsel, Bank of America
Corporation, Bank of America Corporate Center, 000 Xxxxx Xxxxx Xxxxxx
(00xx Xxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 28255), telecopy number: (704)
387-0922;
(ii) in the case of the Master Servicer, Bank of America, 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 2006-1, with copy to: Xxxxx X. XxXxxx, Esq.,
Cadwalader, Xxxxxxxxxx & Xxxx LLP, 000 Xxxx Xxxxx Xxxxxx, 00xx Xxxxx,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000;
(iii) in the case of the Special Servicer, Midland Loan Services,
Inc., 00000 Xxxxxx, Xxxxx 000, Xxxxxxxx Xxxx, Xxxxxx 00000 (for
deliveries), and X.X. Xxx 00000, Xxxxxxx Xxxxxxx, Xxxxxx 00000-0000 (for
communications by United States mail), Attention: President, telecopy
number: (000) 000-0000;
(iv) in the case of the Trustee and REMIC Administrator, 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 2005-4, 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,
Anthracite Capital, Inc., at Anthracite Capital, Inc., 00 Xxxx 00xx
Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx Xxxx and
Xxxxxx Xxxxxx, telecopy number: (000) 000-0000;
(vii) in the case of the initial KinderCare Portfolio Pari Passu
Note A-1 Holder, LaSalle Bank National Association, as Trustee for the
registered holders of Banc of America Commercial Mortgage Inc. Commercial
Mortgage Pass-Through Certificates, Series 2005-6, at 000 Xxxxx XxXxxxx,
Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Global Securities and
Trust Services Group - Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2005-6, telecopy
number: (000) 000-0000;
(viii) in the case of the initial KinderCare Portfolio Controlling
Holder, [Banc of America Securities LLC, 000 Xxxxx Xxxxx Xxxxxx,
XX0-000-00-00, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Xx. Xxxxxxx X.
Xxxxx, with a copy to Xxxx X. Kurieja, Esq., at 000 Xxxxx Xxxxx Xxxxxx
20th Floor, NC1-007-20-01, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 and with a copy
to A. Xxxxx Xxxxxx, Esq.];
(ix) in the case of the initial Torre Mayor Pari Passu Note A-1
Holder, LaSalle Bank National Association, as Trustee for the registered
holders of Banc of America Commercial Mortgage Inc. Commercial Mortgage
Pass-Through Certificates, Series 2005-5, at 000 Xxxxx XxXxxxx, Xxxxx
0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Global Securities and Trust
Services Group - Banc of America Commercial Mortgage Inc., Commercial
Mortgage Pass-Through Certificates, Series 2005-5, telecopy number: (312)
904-2084;
(x) in the case of the initial Torre Mayor Controlling Holder,
Metropolitan Life Insurance Company, 00 Xxxx Xxxxxx, Xxxxxxxxxx, Xxx
Xxxxxx 00000, Attention: Senior Managing Director, Real Estate
Investments;
(xi) in the case of the Class A-SBFL Swap Counterparty, IXIS
Financial Products, Inc., 0 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Swaps Administration, telecopy number: (212)
891-6298, with a copy to General Counsel, telecopy number (000) 000-0000;
or as to each such Person such other address as may hereafter be
furnished by such Person to the parties hereto in writing. Any communication
required or permitted to be delivered to a Certificateholder shall be deemed to
have been duly given when mailed first class, postage prepaid, to the address of
such Holder as shown in the Certificate Register.
Section 12.06 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms
of this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
Section 12.07 Successors and Assigns; Beneficiaries.
The provisions of this Agreement shall be binding upon and inure to
the benefit of the respective successors and assigns of the parties hereto, and
all such provisions shall inure to the benefit of the Certificateholders. Each
Companion Loan Holder and any designees thereof acting on behalf of or
exercising the rights of such Companion Loan Holder and the Class A-SBFL Swap
Counterparty 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
Torre Mayor Loan REMIC Distribution Account, the REMIC I Distribution
Account, the REMIC II Distribution Account, the Excess Interest
Distribution Account, the Class A-SBFL Floating Rate 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 Controlling Holder, any
Companion Loan Holder or a Holder of a Non-Registered Certificate (except a
Class V, Class R-I, Class R-II or Class R-TM 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, Class R-II or Class R-TM 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 Controlling Holder, any Companion Loan Holder or any
Holder of a Non-Registered Certificate (except a Class V, Class R-I, Class R-II
or Class R-TM 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.
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers or representatives thereunto duly
authorized, in each case as of the day and year first above written.
BANC OF AMERICA COMMERCIAL
MORTGAGE INC.
Depositor
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
BANK OF AMERICA, NATIONAL ASSOCIATION
Master Servicer
By: /s/ Xxxx X Xxxxxx
--------------------------------------
Name: Xxxx X Xxxxxx
Title: Prinicipal
MIDLAND LOAN SERVICES, INC.
Special Servicer
By: /s/ Xxxxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Senior Vice President
XXXXX FARGO BANK, N.A.
Trustee and REMIC Administrator
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
HSBC FINANCIAL SERVICES (CAYMAN) LIMITED,
collateral trustee with respect to the
Mortgaged Property securing the Cayman
Islands Mortgage Loan
By: /s/ Xxxxxx Xxxxxx & Xxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxx & Xxxxxx Xxxxxx
Title: Authorized Signatories
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBURG )
On the 14th day of March 2006, before me, a notary public in and for
said State, personally appeared Xxxx X. Xxxxxx known to me to be a Vice
President of BANC OF AMERICA COMMERCIAL MORTGAGE INC. one of the entities that
executed the within instrument, and also known to me to be the person who
executed it on behalf of such entity, and acknowledged to me that such person
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxxxxx X. Xxxxxxx
-----------------------------------------
Notary Public
[Notarial Seal]
My commission expires:
February 4, 0000
--------------------------
XXXXX XX XXXXX XXXXXXXX )
) ss.:
COUNTY OF MECKLENBURG )
On the 14th day of March 2006, before me, a notary public in and for
said State, personally appeared Xxxx X. Xxxxxx known to me to be a Principal of
BANK OF AMERICA, NATIONAL ASSOCIATION, one of the entities that executed the
within instrument, and also known to me to be the person who executed it on
behalf of such entity, and acknowledged to me that such person executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxxxxx X. Xxxxxxx
-----------------------------------------
Notary Public
[Notarial Seal]
My commission expires:
February 8, 0000
--------------------------
XXXXX XX XXXXXX )
) ss.:
COUNTY OF XXXXXXX )
On the 14th day of March 2006, before me, a notary public in and
for said State, personally appeared Xxxxxxxx X. Xxxxxx, known to me to be a
Senior Vice President of Midland Loan Services, Inc., one of the entities that
executed the within instrument, and also known to me to be the person who
executed it on behalf of such 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 Xxxxxx
-----------------------------------------
Notary Public
[Notarial Seal]
My commission expires:
January 30, 0000
--------------------------
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On the 8th day of March 2006, before me, a notary public in and for
said State, personally appeared Xxxxxxx Xxxxxxx, known to me to be a Vice
President of XXXXX FARGO BANK, N.A. which executed the within instrument, and
also known to me to be the person who executed it on behalf of such entity, and
acknowledged to me that such person executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxx X. Xxxxxx
-----------------------------------------
Notary Public
[Notarial Seal]
My commission expires:
January 3, 2009
--------------------------
Exhibit A-1
Form of Class A-1 Certificate
CLASS A-1 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2006-1
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
5.2190% per annum Certificate as of the Issue Date:
$[81,500,000]
Date of Pooling and Servicing Agreement: Class Principal Balance of all the
March 1, 2006 Class A-1 Certificates as of the Issue
Date:
$[81,500,000]
Cut-off Date: Initial Pool Balance: $[2,037,667,323]
March 1, 2006
Issue Date:
March 14, 2006
First Distribution Date:
April 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, X.X. Xxxxx Fargo Bank, N.A.
Special Servicer:
Midland Loan Services, Inc.
Certificate No.: A-1-[__] CUSIP No.: [________]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., MIDLAND LOAN
SERVICES, INC., XXXXX FARGO BANK, N.A. OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-1 Certificates referred to in the within mentioned
Agreement.
Dated:
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
________________________________________________________________________________
Dated:
--------------------------------------
Signature by or on behalf of Assignor
--------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ______________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and
notices should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-2
Form of Class A-2 Certificate
CLASS A-2 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2006-1
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
5.3340% per annum Certificate as of the Issue Date:
$[84,400,000]
Date of Pooling and Servicing Agreement: Class Principal Balance of all the
March 1, 2006 Class A-2 Certificates as of the Issue
Date:
$[84,400,000]
Cut-off Date: Initial Pool Balance: $[2,037,667,323]
March 1, 2006
Issue Date:
March 14, 2006
First Distribution Date:
April 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, X.X. Xxxxx Fargo Bank, N.A.
Special Servicer:
Midland Loan Services, Inc.
Certificate No.: A-2-[__] CUSIP No.: [________]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., MIDLAND LOAN
SERVICES, INC., XXXXX FARGO BANK, N.A. OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-2 Certificates referred to in the within mentioned
Agreement.
Dated:
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
________________________________________________________________________________
Dated:
--------------------------------------
Signature by or on behalf of Assignor
--------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ______________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and
notices should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-3
Form of Class A-3A Certificate
CLASS A-3A COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2006-1
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
5.4470% per annum Certificate as of the Issue Date:
$[130,100,000]
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class A-3A Certificates as of the
March 1, 2006 Issue Date:
$[130,100,000]
Cut-off Date: Initial Pool Balance: $[2,037,667,323]
March 1, 2006
Issue Date:
March 14, 2006
First Distribution Date:
April 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, X.X. Xxxxx Fargo Bank, N.A.
Special Servicer:
Midland Loan Services, Inc.
Certificate No.: A-3A-[__] CUSIP No.: [________]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., MIDLAND LOAN
SERVICES, INC., XXXXX FARGO BANK, N.A. OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-3A Certificates referred to in the within
mentioned Agreement.
Dated:
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
________________________________________________________________________________
Dated:
--------------------------------------
Signature by or on behalf of Assignor
--------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ______________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and
notices should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-4
Form of Class A-3B Certificate
CLASS A-3B COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2006-1
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
5.4470% Certificate as of the Issue Date:
$[25,000,000]
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class A-3A Certificates as of the
March 1, 2006 Issue Date:
$[25,000,000]
Cut-off Date: Initial Pool Balance: $[2,037,667,323]
March 1, 2006
Issue Date:
March 14, 2006
First Distribution Date:
April 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, X.X. Xxxxx Fargo Bank, N.A.
Special Servicer:
Midland Loan Services, Inc.
Certificate No.: A-3A-[__] CUSIP No.: [________]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., MIDLAND LOAN
SERVICES, INC., XXXXX FARGO BANK, N.A. OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-3B Certificates referred to in the within
mentioned Agreement.
Dated:
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
________________________________________________________________________________
Dated:
--------------------------------------
Signature by or on behalf of Assignor
--------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ______________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and
notices should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-5
Form of Class A-SBFL Certificate
CLASS A-SBFL COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2006-1
[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
LIBOR + 0.20% Certificate as of the Issue Date:
$[133,468,000]
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class A-SBFL Certificates as of the
March 1, 2006 Issue Date:
$[133,468,000]
Cut-off Date: Initial Pool Balance: $[2,037,667,323]
March 1, 2006
Issue Date:
March 14, 2006
First Distribution Date:
April 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, X.X. Xxxxx Fargo Bank, N.A.
Special Servicer:
Midland Loan Services, Inc.
Certificate No.: P-[__] 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, N.A., MIDLAND LOAN
SERVICES, INC., XXXXX FARGO BANK, N.A. OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT
TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"),
OR A GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY
FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II)
A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN
ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN
THE ENTITY BY SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION
ss. 2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUCH
CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE
NAME OF A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL
IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE
DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY
SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR RESULT IN A
NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF
THE CODE OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE
DEPOSITOR TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES
UNDER ERISA, SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO
THOSE SET FORTH IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A
CERTIFICATE THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT
IT IS NOT A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-SBFL Certificates referred to in the within
mentioned Agreement.
Dated:
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
the following address: _________________________________________________________
_____________________________________________________________________________.
Dated:
--------------------------------------
Signature by or on behalf of Assignor
--------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ____________ for the account of
--------------------.
Distributions made by check (such check to be made payable to
____________) and all applicable statements and notices should be mailed to
---------------------------.
This information is provided by ______________________________________, the
assignee named above, or _______________________________________, as its agent.
Exhibit A-6
Form of Class A-4 Certificate
CLASS A-4 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2006-1
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
5.3720% per annum Certificate as of the Issue Date:
$[500,000,000] $[116,500,000]
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class A-4 Certificates as of the Issue
March 1, 2006 Date:
$[500,000,000] $[116,500,000]
Cut-off Date: Initial Pool Balance: $$[2,037,667,323]
March 1, 2006
Issue Date:
March 14, 2006
First Distribution Date:
April 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, X.X. Xxxxx Fargo Bank, N.A.
Special Servicer:
Midland Loan Services, Inc.
Certificate No.: A-4-[__] CUSIP No.: [________]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., MIDLAND LOAN
SERVICES, INC., XXXXX FARGO BANK, N.A. OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-4 Certificates referred to in the within mentioned
Agreement.
Dated:
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
________________________________________________________________________________
Dated:
--------------------------------------
Signature by or on behalf of Assignor
--------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ______________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and
notices should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-7
Form of Class A-1A Certificate
CLASS A-1A COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2006-1
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
5.3780% per annum Certificate as of the Issue Date:
$[355,399,000]
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class A-1A Certificates as of the
March 1, 2006 Issue Date:
$[355,399,000]
Cut-off Date: Initial Pool Balance: $[2,037,667,323]
March 1, 2006
Issue Date:
March 14, 2006
First Distribution Date:
April 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, X.X. Xxxxx Fargo Bank, N.A.
Special Servicer:
Midland Loan Services, Inc.
Certificate No.: A-SB-[__] CUSIP No.: [________]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., MIDLAND LOAN
SERVICES, INC., XXXXX FARGO BANK, N.A. OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-1A Certificates referred to in the within
mentioned Agreement.
Dated:
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
________________________________________________________________________________
Dated:
--------------------------------------
Signature by or on behalf of Assignor
--------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ______________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and
notices should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-8
Form of Class XC Certificate
CLASS XC COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2006-1
[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
0.0447% Certificate as of the Issue Date:
$[500,000,000] $[500,000,000]
$[500,000,000] $[500,000,000]
$[37,667,323]
Date of Pooling and Servicing Class Notional Amount of all the Class
Agreement: XC Certificates as of the Issue Date:
March 1, 2006 $2,037,667,323
Cut-off Date: Initial Pool Balance: $[2,037,667,323]
March 1, 2006
Issue Date:
March 14, 2006
First Distribution Date:
April 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, X.X. Xxxxx Fargo Bank, N.A.
Special Servicer:
Midland Loan Services, Inc.
Certificate No.: XC-[__] 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, N.A., MIDLAND LOAN
SERVICES, INC., XXXXX FARGO BANK, N.A. OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED.
THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND DOES NOT
ENTITLE THE HOLDER HEREOF TO ANY DISTRIBUTIONS OF PRINCIPAL. THE HOLDER HEREOF
WILL BE ENTITLED TO DISTRIBUTIONS OF INTEREST ACCRUED AS PROVIDED IN THE
AGREEMENT REFERRED TO HEREIN ON THE CERTIFICATE NOTIONAL AMOUNT OF THIS
CERTIFICATE, WHICH AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the notional
principal amount of this Certificate (its "Certificate Notional Amount") as of
the Issue Date by the aggregate notional principal balance of all the
Certificates of the same Class as this Certificate (their "Class Notional
Amount") as of the Issue Date) in that certain beneficial ownership interest in
the Trust Fund evidenced by all the Certificates of the same Class as this
Certificate. The Trust Fund was created and the Certificates were issued
pursuant to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Banc of America Commercial Mortgage Inc., as Depositor, and
the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator identified above. To the extent not defined herein, the
capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar appointed as provided in the Agreement or
such other location as may be specified in such notice.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class XC Certificates referred to in the within mentioned
Agreement.
Dated:
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred for, or
issued in exchange for or upon Remaining Principal
transfer of, an interest in this Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
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---------- -------------------------------- -------------------- -----------
---------- -------------------------------- -------------------- -----------
---------- -------------------------------- -------------------- -----------
---------- -------------------------------- -------------------- -----------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
________________________________________________________________________________
Dated:
--------------------------------------
Signature by or on behalf of Assignor
--------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ______________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and
notices should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-9
Form of Class XP Certificate
CLASS XP COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2006-1
[RULE 144A] 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
0.3406% Certificate as of the Issue Date:
$[500,000,000] $[500,000,000]
$[500,000,000] $[489,427,000]
Date of Pooling and Servicing Class Notional Amount of all the Class
Agreement: XP Certificates as of the Issue Date:
March 1, 2006 [$1,989,427,000]
Cut-off Date: Initial Pool Balance: $$[2,037,667,323]
March 1, 2006
Issue Date:
March 14, 2006
First Distribution Date:
April 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, X.X. Xxxxx Fargo Bank, N.A.
Special Servicer:
Midland Loan Services, Inc.
Certificate No.: XP-[__] CUSIP No.: [__________]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., MIDLAND LOAN
SERVICES, INC., 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 XP Certificates referred to in the within mentioned
Agreement.
Dated:
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred for, or
issued in exchange for or upon Remaining Principal
transfer of, an interest in this Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
---------- -------------------------------- -------------------- -----------
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---------- -------------------------------- -------------------- -----------
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---------- -------------------------------- -------------------- -----------
---------- -------------------------------- -------------------- -----------
---------- -------------------------------- -------------------- -----------
---------- -------------------------------- -------------------- -----------
---------- -------------------------------- -------------------- -----------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
________________________________________________________________________________
Dated:
--------------------------------------
Signature by or on behalf of Assignor
--------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ______________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and
notices should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-10
Form of Class A-M Certificate
CLASS A-M COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2006-1
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:
$[203,766,000]
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class A-M Certificates as of the Issue
March 1, 2006 Date:
$[203,766,000]
Cut-off Date: Initial Pool Balance: $[2,037,667,323]
March 1, 2006
Issue Date:
March 14, 2006
First Distribution Date:
April 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, X.X. Xxxxx Fargo Bank, N.A.
Special Servicer:
Midland Loan Services, Inc.
Certificate No.: A-M-[__] CUSIP No.: [________]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., MIDLAND LOAN
SERVICES, INC., XXXXX FARGO BANK, N.A. OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF OF AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-M Certificates referred to in the within mentioned
Agreement.
Dated:
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
________________________________________________________________________________
Dated:
--------------------------------------
Signature by or on behalf of Assignor
--------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ______________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and
notices should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-11
Form of Class A-J Certificate
CLASS A-J COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2006-1
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
5.4600% Certificate as of the Issue Date:
$[142,637,000]
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class A-J Certificates as of the Issue
March 1, 2006 Date:
$[142,637,000]
Cut-off Date: Initial Pool Balance: $$[2,037,667,323]
March 1, 2006
Issue Date:
March 14, 2006
First Distribution Date:
April 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, X.X. Xxxxx Fargo Bank, N.A.
Special Servicer:
Midland Loan Services, Inc.
Certificate No.: A-J-[__] CUSIP No.: [________]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., MIDLAND LOAN
SERVICES, INC., XXXXX FARGO BANK, N.A. OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF OF AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-J Certificates referred to in the within mentioned
Agreement.
Dated:
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
________________________________________________________________________________
Dated:
--------------------------------------
Signature by or on behalf of Assignor
--------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ______________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and
notices should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-12
Form of Class B Certificate
CLASS B COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2006-1
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
5.4900% per annum Certificate as of the Issue Date:
$[20,377,000]
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class B Certificates as of the Issue
March 1, 2006 Date:
$[20,377,000]
Cut-off Date: Initial Pool Balance: $[2,037,667,323]
March 1, 2006
Issue Date:
March 14, 2006
First Distribution Date:
April 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, X.X. Xxxxx Fargo Bank, N.A.
Special Servicer:
Midland Loan Services, Inc.
Certificate No.: B-[__] CUSIP No.: [________]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., MIDLAND LOAN
SERVICES, INC., XXXXX FARGO BANK, N.A. OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF OF AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class B Certificates referred to in the within mentioned
Agreement.
Dated:
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
________________________________________________________________________________
Dated:
--------------------------------------
Signature by or on behalf of Assignor
--------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ______________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and
notices should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-13
Form of Class C Certificate
CLASS C COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE, SERIES 2006-1
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
5.5090 % per annum Certificate as of the Issue Date:
$[22,924,000]
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class C Certificates as of the Issue
March 1, 2006 Date:
$[22,924,000]
Cut-off Date: Initial Pool Balance: $$[2,037,667,323]
March 1, 2006
Issue Date:
March 14, 2006
First Distribution Date:
April 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, X.X. Xxxxx Fargo Bank, N.A.
Special Servicer:
Midland Loan Services, Inc.
Certificate No.: C-[__] CUSIP No.: [________]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., MIDLAND LOAN
SERVICES, INC., XXXXX FARGO BANK, N.A. OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF OF AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class C Certificates referred to in the within mentioned
Agreement.
Dated:
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
________________________________________________________________________________
Dated:
--------------------------------------
Signature by or on behalf of Assignor
--------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ______________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and
notices should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-14
Form of Class D Certificate
CLASS D COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2006-1
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
5.6424% Certificate as of the Issue Date:
$[20,376,000]
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class D Certificates as of the Issue
March 1, 2006 Date:
$[20,376,000]
Cut-off Date: Initial Pool Balance: $[2,037,667,323]
March 1, 2006
Issue Date:
March 14, 2006
First Distribution Date:
April 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, X.X. Xxxxx Fargo Bank, N.A.
Special Servicer:
Midland Loan Services, Inc.
Certificate No.: D-[__] CUSIP No.: [________]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., MIDLAND LOAN
SERVICES, INC., XXXXX FARGO BANK, N.A. OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF OF AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class D Certificates referred to in the within mentioned
Agreement.
Dated:
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
________________________________________________________________________________
Dated:
--------------------------------------
Signature by or on behalf of Assignor
--------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ______________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and
notices should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-15
Form of Class E Certificate
CLASS E COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2006-1
[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
5.7304% Certificate as of the Issue Date:
$[35,659,000]
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class E Certificates as of the Issue
March 1, 2006 Date:
$[35,659,000]
Cut-off Date: Initial Pool Balance: $[2,037,667,323]
March 1, 2006
Issue Date:
March 14, 2006
First Distribution Date:
April 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, X.X. Xxxxx Fargo Bank, N.A.
Special Servicer:
Midland Loan Services, Inc.
Certificate No.: E-[__] 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, N.A., MIDLAND LOAN
SERVICES, INC., XXXXX FARGO BANK, N.A. OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF OF AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class E Certificates referred to in the within mentioned
Agreement.
Dated:
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred for, or
issued in exchange for or upon Remaining Principal
transfer of, an interest in this Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
---------- -------------------------------- -------------------- -----------
---------- -------------------------------- -------------------- -----------
---------- -------------------------------- -------------------- -----------
---------- -------------------------------- -------------------- -----------
---------- -------------------------------- -------------------- -----------
---------- -------------------------------- -------------------- -----------
---------- -------------------------------- -------------------- -----------
---------- -------------------------------- -------------------- -----------
---------- -------------------------------- -------------------- -----------
---------- -------------------------------- -------------------- -----------
---------- -------------------------------- -------------------- -----------
---------- -------------------------------- -------------------- -----------
---------- -------------------------------- -------------------- -----------
---------- -------------------------------- -------------------- -----------
---------- -------------------------------- -------------------- -----------
---------- -------------------------------- -------------------- -----------
---------- -------------------------------- -------------------- -----------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
________________________________________________________________________________
Dated:
--------------------------------------
Signature by or on behalf of Assignor
--------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ______________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and
notices should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-16
Form of Class F Certificate
CLASS F COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2006-1
[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
5.7764 Certificate as of the Issue Date:
$[20,377,000]
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class F Certificates as of the Issue
March 1, 2006 Date:
$[20,377,000]
Cut-off Date: Initial Pool Balance: $$[2,037,667,323]
March 1, 2006
Issue Date:
March 14, 2006
First Distribution Date:
April 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, X.X. Xxxxx Fargo Bank, N.A.
Special Servicer:
Midland Loan Services, Inc.
Certificate No.: F-[__] 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, N.A., MIDLAND LOAN
SERVICES, INC., XXXXX FARGO BANK, N.A. OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF OF AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class F Certificates referred to in the within mentioned
Agreement.
Dated:
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred for, or
issued in exchange for or upon Remaining Principal
transfer of, an interest in this Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
---------- -------------------------------- -------------------- -----------
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---------- -------------------------------- -------------------- -----------
---------- -------------------------------- -------------------- -----------
---------- -------------------------------- -------------------- -----------
---------- -------------------------------- -------------------- -----------
---------- -------------------------------- -------------------- -----------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
________________________________________________________________________________
Dated:
--------------------------------------
Signature by or on behalf of Assignor
--------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ______________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and
notices should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-17
Form of Class G Certificate
CLASS G COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2006-1
[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
5.7764% Certificate as of the Issue Date:
$[25,471,000]
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class G Certificates as of the Issue
March 1, 2006 Date:
$[25,471,000]
Cut-off Date: Initial Pool Balance: $$[2,037,667,323]
March 1, 2006
Issue Date:
March 14, 2006
First Distribution Date:
April 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, X.X. Xxxxx Fargo Bank, N.A.
Special Servicer:
Midland Loan Services, Inc.
Certificate No.: G-[__] 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, N.A., MIDLAND LOAN
SERVICES, INC., XXXXX FARGO BANK, N.A. OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF OF AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class G Certificates referred to in the within mentioned
Agreement.
Dated:
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred for, or
issued in exchange for or upon Remaining Principal
transfer of, an interest in this Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
---------- -------------------------------- -------------------- -----------
---------- -------------------------------- -------------------- -----------
---------- -------------------------------- -------------------- -----------
---------- -------------------------------- -------------------- -----------
---------- -------------------------------- -------------------- -----------
---------- -------------------------------- -------------------- -----------
---------- -------------------------------- -------------------- -----------
---------- -------------------------------- -------------------- -----------
---------- -------------------------------- -------------------- -----------
---------- -------------------------------- -------------------- -----------
---------- -------------------------------- -------------------- -----------
---------- -------------------------------- -------------------- -----------
---------- -------------------------------- -------------------- -----------
---------- -------------------------------- -------------------- -----------
---------- -------------------------------- -------------------- -----------
---------- -------------------------------- -------------------- -----------
---------- -------------------------------- -------------------- -----------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
________________________________________________________________________________
Dated:
--------------------------------------
Signature by or on behalf of Assignor
--------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ______________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and
notices should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-18
Form of Class H Certificate
CLASS H COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2006-1
[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
5.7764% Certificate as of the Issue Date:
$[22,924,000]
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class H Certificates as of the Issue
March 1, 2006 Date:
$[22,924,000]
Cut-off Date: Initial Pool Balance: $$[2,037,667,323]
March 1, 2006
Issue Date:
March 14, 2006
First Distribution Date:
April 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, X.X. Xxxxx Fargo Bank, N.A.
Special Servicer:
Midland Loan Services, Inc.
Certificate No.: H-[__] 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, N.A., MIDLAND LOAN
SERVICES, INC., XXXXX FARGO BANK, N.A. OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF OF AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class H Certificates referred to in the within mentioned
Agreement.
Dated:
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred for, or
issued in exchange for or upon Remaining Principal
transfer of, an interest in this Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
________________________________________________________________________________
Dated:
--------------------------------------
Signature by or on behalf of Assignor
--------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ______________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and
notices should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-19
Form of Class J Certificate
CLASS J COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2006-1
[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
5.7764% Certificate as of the Issue Date:
$[28,018,000]
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class J Certificates as of the Issue
March 1, 2006 Date:
$[28,018,000]
Cut-off Date: Initial Pool Balance: $$[2,037,667,323]
March 1, 2006
Issue Date:
March 14, 2006
First Distribution Date:
April 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, X.X. Xxxxx Fargo Bank, N.A.
Special Servicer:
Midland Loan Services, Inc.
Certificate No.: J-[__] 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, N.A., MIDLAND LOAN
SERVICES, INC., XXXXX FARGO BANK, N.A. OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF OF AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class J Certificates referred to in the within mentioned
Agreement.
Dated:
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred for, or
issued in exchange for or upon Remaining Principal
transfer of, an interest in this Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
________________________________________________________________________________
Dated:
--------------------------------------
Signature by or on behalf of Assignor
--------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ______________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and
notices should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-20
Form of Class K Certificate
CLASS K COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2006-1
[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
5.0450% Certificate as of the Issue Date:
$[7,641,000]
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class K Certificates as of the Issue
March 1, 2006 Date:
$[7,641,000]
Cut-off Date: Initial Pool Balance: $$[2,037,667,323]
March 1, 2006
Issue Date:
March 14, 2006
First Distribution Date:
April 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, X.X. Xxxxx Fargo Bank, N.A.
Special Servicer:
Midland Loan Services, Inc.
Certificate No.: K-[__] 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, N.A., MIDLAND LOAN
SERVICES, INC., XXXXX FARGO BANK, N.A. OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT
TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"),
OR A GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY
FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II)
A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN
ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN
THE ENTITY BY SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION
ss. 2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUCH
CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE
NAME OF A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL
IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE
DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY
SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR RESULT IN A
NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF
THE CODE OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE
DEPOSITOR TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES
UNDER ERISA, SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO
THOSE SET FORTH IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A
CERTIFICATE THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT
IT IS NOT A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF OF AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class K Certificates referred to in the within mentioned
Agreement.
Dated:
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred for, or
issued in exchange for or upon Remaining Principal
transfer of, an interest in this Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
________________________________________________________________________________
Dated:
--------------------------------------
Signature by or on behalf of Assignor
--------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ______________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and
notices should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-21
Form of Class L Certificate
CLASS L COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2006-1
[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
5.0450% Certificate as of the Issue Date:
$[10,188,000]
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class L Certificates as of the Issue
March 1, 2006 Date:
$[10,188,000]
Cut-off Date: Initial Pool Balance: $$[2,037,667,323]
March 1, 2006
Issue Date:
March 14, 2006
First Distribution Date:
April 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, X.X. Xxxxx Fargo Bank, N.A.
Special Servicer:
Midland Loan Services, Inc.
Certificate No.: L-[__] 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, N.A., MIDLAND LOAN
SERVICES, INC., XXXXX FARGO BANK, N.A. OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT
TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"),
OR A GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY
FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II)
A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN
ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN
THE ENTITY BY SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION
ss. 2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUCH
CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE
NAME OF A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL
IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE
DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY
SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR RESULT IN A
NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF
THE CODE OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE
DEPOSITOR TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES
UNDER ERISA, SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO
THOSE SET FORTH IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A
CERTIFICATE THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT
IT IS NOT A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class L Certificates referred to in the within mentioned
Agreement.
Dated:
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred for, or
issued in exchange for or upon Remaining Principal
transfer of, an interest in this Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
________________________________________________________________________________
Dated:
--------------------------------------
Signature by or on behalf of Assignor
--------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ______________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and
notices should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-22
Form of Class M Certificate
CLASS M COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2006-1
[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
5.0450% Certificate as of the Issue Date:
$[7,641,000]
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class M Certificates as of the Issue
March 1, 2006 Date:
$[7,641,000]
Cut-off Date: Initial Pool Balance: $$[2,037,667,323]
March 1, 2006
Issue Date:
March 14, 2006
First Distribution Date:
April 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, X.X. Xxxxx Fargo Bank, N.A.
Special Servicer:
Midland Loan Services, Inc.
Certificate No.: M-[__] 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, N.A., MIDLAND LOAN
SERVICES, INC., XXXXX FARGO BANK, N.A. OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT
TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"),
OR A GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY
FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II)
A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN
ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN
THE ENTITY BY SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION
ss. 2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUCH
CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE
NAME OF A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL
IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE
DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY
SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR RESULT IN A
NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF
THE CODE OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE
DEPOSITOR TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES
UNDER ERISA, SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO
THOSE SET FORTH IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A
CERTIFICATE THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT
IT IS NOT A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class M Certificates referred to in the within mentioned
Agreement.
Dated:
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred for, or
issued in exchange for or upon Remaining Principal
transfer of, an interest in this Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
________________________________________________________________________________
Dated:
--------------------------------------
Signature by or on behalf of Assignor
--------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ______________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and
notices should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-23
Form of Class N Certificate
CLASS N COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2006-1
[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
5.0450% Certificate as of the Issue Date:
$[2,547,000]
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class N Certificates as of the Issue
March 1, 2006 Date:
$[2,547,000]
Cut-off Date: Initial Pool Balance: $[2,037,667,323]
March 1, 2006
Issue Date:
March 14, 2006
First Distribution Date:
April 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, X.X. Xxxxx Fargo Bank, N.A.
Special Servicer:
Midland Loan Services, Inc.
Certificate No.: N-[__] 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, N.A., MIDLAND LOAN
SERVICES, INC., XXXXX FARGO BANK, N.A. OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT
TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"),
OR A GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY
FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II)
A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN
ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN
THE ENTITY BY SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION
ss. 2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUCH
CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE
NAME OF A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL
IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE
DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY
SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR RESULT IN A
NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF
THE CODE OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE
DEPOSITOR TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES
UNDER ERISA, SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO
THOSE SET FORTH IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A
CERTIFICATE THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT
IT IS NOT A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer, and the Trustee, the REMIC Administrator identified above. To the
extent not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, and the Trustee, the
REMIC Administrator, the Certificate Registrar and any agents of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class N Certificates referred to in the within mentioned
Agreement.
Dated:
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred for, or
issued in exchange for or upon Remaining Principal
transfer of, an interest in this Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
---------- -------------------------------- -------------------- -----------
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
________________________________________________________________________________
Dated:
--------------------------------------
Signature by or on behalf of Assignor
--------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ______________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and
notices should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-24
Form of Class O Certificate
CLASS O COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2006-1
[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
5.0450% Certificate as of the Issue Date:
$[5,095,000]
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class O Certificates as of the Issue
March 1, 2006 Date:
$[5,095,000]
Cut-off Date: Initial Pool Balance: $[2,037,667,323]
March 1, 2006
Issue Date:
March 14, 2006
First Distribution Date:
April 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, X.X. Xxxxx Fargo Bank, N.A.
Special Servicer:
Midland Loan Services, Inc.
Certificate No.: O-[__] 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, N.A., MIDLAND LOAN
SERVICES, INC., XXXXX FARGO BANK, N.A. OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT
TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"),
OR A GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY
FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II)
A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN
ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN
THE ENTITY BY SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION
ss. 2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUCH
CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE
NAME OF A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL
IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE
DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY
SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR RESULT IN A
NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF
THE CODE OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE
DEPOSITOR TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES
UNDER ERISA, SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO
THOSE SET FORTH IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A
CERTIFICATE THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT
IT IS NOT A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class O Certificates referred to in the within mentioned
Agreement.
Dated:
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred for, or
issued in exchange for or upon Remaining Principal
transfer of, an interest in this Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
________________________________________________________________________________
Dated:
--------------------------------------
Signature by or on behalf of Assignor
--------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ______________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and
notices should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-25
Form of Class P Certificate
CLASS P COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2006-1
[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
5.0450% Certificate as of the Issue Date:
$[7,641,000]
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class P Certificates as of the Issue
March 1, 2006 Date:
$[7,641,000]
Cut-off Date: Initial Pool Balance: $$[2,037,667,323]
March 1, 2006
Issue Date:
March 14, 2006
First Distribution Date:
April 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, X.X. Xxxxx Fargo Bank, N.A.
Special Servicer:
Midland Loan Services, Inc.
Certificate No.: P-[__] 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, N.A., MIDLAND LOAN
SERVICES, INC., XXXXX FARGO BANK, N.A. OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT
TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"),
OR A GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY
FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II)
A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN
ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN
THE ENTITY BY SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION
ss. 2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUCH
CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE
NAME OF A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL
IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE
DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY
SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR RESULT IN A
NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF
THE CODE OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE
DEPOSITOR TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES
UNDER ERISA, SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO
THOSE SET FORTH IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A
CERTIFICATE THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT
IT IS NOT A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class P Certificates referred to in the within mentioned
Agreement.
Dated:
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred for, or
issued in exchange for or upon Remaining Principal
transfer of, an interest in this Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
________________________________________________________________________________
Dated:
--------------------------------------
Signature by or on behalf of Assignor
--------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ______________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and
notices should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-26
Form of Class Q Certificate
CLASS Q COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2006-1
[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
5.0450% Certificate as of the Issue Date:
$[28,018,323]
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class Q Certificates as of the Issue
March 1, 2006 Date:
$[28,018,323]
Cut-off Date: Initial Pool Balance: $[2,037,667,323]
March 1, 2006
Issue Date:
March 14, 2006
First Distribution Date:
April 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, X.X. Xxxxx Fargo Bank, N.A.
Special Servicer:
Midland Loan Services, Inc.
Certificate No.: P-[__] 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, N.A., MIDLAND LOAN
SERVICES, INC., XXXXX FARGO BANK, N.A. OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT
TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"),
OR A GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY
FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II)
A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN
ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN
THE ENTITY BY SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION
ss. 2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUCH
CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE
NAME OF A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL
IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE
DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY
SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR RESULT IN A
NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF
THE CODE OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE
DEPOSITOR TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES
UNDER ERISA, SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO
THOSE SET FORTH IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A
CERTIFICATE THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT
IT IS NOT A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class Q Certificates referred to in the within mentioned
Agreement.
Dated:
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred for, or
issued in exchange for or upon Remaining Principal
transfer of, an interest in this Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
________________________________________________________________________________
Dated:
--------------------------------------
Signature by or on behalf of Assignor
--------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ______________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and
notices should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-27
Form of Class R-I Certificate
CLASS R-I COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2006-1
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:
March 1, 2006 100%
Cut-off Date: Initial Pool Balance: $[2,037,667,323]
March 1, 2006
Issue Date:
March 14, 2006
First Distribution Date:
April 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, X.X. Xxxxx Fargo Bank, N.A.
Special Servicer:
Midland Loan Services, Inc.
Certificate No.: R-I-[__]
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., MIDLAND LOAN
SERVICES, INC., XXXXX FARGO BANK, N.A. OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS, IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (a)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY PERSON WHICH IS
AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY GOVERNMENTAL
PLAN, AS DEFINED IN SECTION 3(32) OF ERISA, SUBJECT TO ANY FEDERAL, STATE OR
LOCAL LAW WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN"), OR ANY PERSON ACTING ON BEHALF OF OR
INVESTING THE ASSETS OF A PLAN.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE EVIDENCES THE "RESIDUAL
INTEREST" IN TWO "REAL ESTATE MORTGAGE INVESTMENT CONDUITS" (EACH, A "REMIC") AS
THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
CONSEQUENTLY, THE TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL
TAX RELATED TRANSFER RESTRICTIONS AS SET FORTH IN SECTION 5.02 OF THE AGREEMENT.
EACH TRANSFEREE OF THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE
ACCEPTED THIS CERTIFICATE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY IF
ANY PERSON BECOMES THE REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF
SUCH TRANSFER RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL
FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A
CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER OR UNDER THE AGREEMENT REFERRED TO
HEREIN, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE.
This certifies that Bank of America, N.A. is the registered owner of the
Percentage Interest evidenced by this Certificate (as specified above) in that
certain beneficial ownership interest in the Trust Fund evidenced by all the
Certificates of the same Class as this Certificate. The Trust Fund was created
and the Certificates were issued pursuant to a Pooling and Servicing Agreement,
dated as specified above (the "Agreement"), among Banc of America Commercial
Mortgage Inc., as Depositor, and the Master Servicer, the Special Servicer and
the Trustee and REMIC Administrator identified above. To the extent not defined
herein, the capitalized terms used herein have the respective meanings assigned
in the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing upon the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of the Person entitled thereto, as such name and address
appear in the Certificate Register. Notwithstanding the above, the final
distribution in respect of this Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the offices of the Certificate Registrar
appointed as provided in the Agreement or such other location as may be
specified in such notice.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, Distribution Account and, if established, the REO Account
may be made from time to time for purposes other than, and, in certain cases,
prior to, distributions to Certificateholders, such purposes including the
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
Each Person who has or who acquires any Ownership Interest in this
Certificate shall be deemed by the acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the provisions of Section 5.02(d) of the
Agreement and, if any purported Transferee shall become a Holder of this
Certificate in violation of the provisions of such Section 5.02(d), to have
irrevocably authorized the Trustee under clause (ii) of such Section 5.02(d) to
deliver payments to a Person other than such Person and to have irrevocably
authorized the Trustee under clause (ii) of such Section 5.02(d) to negotiate
the terms of any mandatory disposition and to execute all instruments of
transfer and to do all other things necessary in connection with any such
disposition. Each Person holding or acquiring any Ownership Interest in this
Certificate must be a Permitted Transferee and shall promptly notify the Master
Servicer and the Trustee and REMIC Administrator of any change or impending
change in its status as a Permitted Transferee. In connection with any proposed
transfer of any Ownership Interest in this Certificate, the Certificate
Registrar shall require delivery to it, and shall not register the transfer of
this Certificate until its receipt of, an affidavit and agreement substantially
in the form attached as Exhibit C-1 to the Agreement (a "Transfer Affidavit and
Agreement") from the proposed Transferee, in form and substance satisfactory to
the Certificate Registrar, representing and warranting, among other things, that
such Transferee is a Permitted Transferee, that it is not acquiring its
Ownership Interest in this Certificate as a nominee, trustee or agent for any
Person that is not a Permitted Transferee, that for so long as it retains its
Ownership Interest in this Certificate, it will endeavor to remain a Permitted
Transferee, and that it has reviewed the provisions of Section 5.02(d) of the
Agreement and agrees to be bound by them. Notwithstanding the delivery of a
Transfer Affidavit and Agreement by a proposed Transferee, if the Certificate
Registrar has actual knowledge that the proposed Transferee is not a Permitted
Transferee, the Certificate Registrar shall not register the Transfer of an
Ownership Interest in this Certificate to such proposed Transferee.
Each Person holding or acquiring any Ownership Interest in this Certificate
shall agree (x) to require a Transfer Affidavit and Agreement from any other
Person to whom such Person attempts to transfer its Ownership Interest herein
and (y) not to transfer its Ownership Interest herein unless it provides to the
Certificate Registrar a certificate substantially in the form attached as
Exhibit C-2 to the Agreement stating that, among other things, it has no actual
knowledge that such other Person is not a Permitted Transferee.
A "Permitted Transferee" is any Transferee that is not a Plan or a Person
acting on behalf of or using the assets of a Plan, a Disqualified Organization,
a Non-United States Person or any Person the income of which is attributable to
a foreign permanent establishment or fixed base, within the meaning of an
applicable income tax treaty, of such Person or any other United States Person.
A "Disqualified Organization" is (i) the United States, any State or
political subdivision thereof, any possession of the United States, or any
agency or instrumentality of any of the foregoing (other than an instrumentality
which is a corporation if all of its activities are subject to tax and, except
for the Xxxxxxx Mac, a majority of whose board of directors is not selected by
such governmental unit), (ii) a foreign government, any international
organization, or any agency or instrumentality of any of the foregoing, (iii)
any organization (other than certain farmers' cooperatives described in Section
521 of the Code) which is exempt from the tax imposed by Chapter 1 of the Code
(unless such organization is subject to the tax imposed by Section 511 of the
Code on unrelated business taxable income), (iv) rural electric and telephone
cooperatives described in Section 1381 of the Code and (v) any other Person so
designated by the REMIC Administrator based upon an opinion of counsel that the
holding of an Ownership Interest in a Residual Certificate by such Person may
cause the Trust Fund or any Person having an Ownership Interest in any Class of
Certificates (other than such Person) to incur a liability for any federal tax
imposed under the Code that would not otherwise be imposed but for the Transfer
of an Ownership Interest in a Residual Certificate to such Person. The terms
"United States", "State" and "international organization" shall have the
meanings set forth in Section 7701 of the Code or successor provisions.
A "Non United States Person" is (a) any Person other than a United States
Person or (b) any Person the income of which is attributable to a foreign
permanent establishment or fixed base, within the meaning of an applicable
income tax treaty, of such Person or any other United States Person. A "United
States Person" is a citizen or resident of the United States, a corporation or
partnership (except to the extent provided in 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:
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred for, or
issued in exchange for or upon Remaining Principal
transfer of, an interest in this Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
________________________________________________________________________________
Dated:
--------------------------------------
Signature by or on behalf of Assignor
--------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ______________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and
notices should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-28
Form of Class R-II Certificate
CLASS R-II COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2006-1
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:
March 1, 2006 100%
Cut-off Date: Initial Pool Balance: $$[2,037,667,323]
March 1, 2006
Issue Date:
March 14, 2006
First Distribution Date:
April 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, X.X. Xxxxx Fargo Bank, N.A.
Special Servicer:
Midland Loan Services, Inc.
Certificate No.: R-II-[__]
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., MIDLAND LOAN
SERVICES, INC., XXXXX FARGO BANK, N.A. OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS, IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (a)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY PERSON WHICH IS
AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY GOVERNMENTAL
PLAN, AS DEFINED IN SECTION 3(32) OF ERISA, SUBJECT TO ANY FEDERAL, STATE OR
LOCAL LAW WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN"), OR ANY PERSON ACTING ON BEHALF OF OR
INVESTING THE ASSETS OF A PLAN.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE EVIDENCES THE "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
CONSEQUENTLY, THE TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL
TAX RELATED TRANSFER RESTRICTIONS AS SET FORTH IN SECTION 5.02 OF THE AGREEMENT.
EACH TRANSFEREE OF THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE
ACCEPTED THIS CERTIFICATE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY. IF
ANY PERSON BECOMES THE REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF
SUCH TRANSFER RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL
FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A
CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER OR UNDER THE AGREEMENT REFERRED TO
HEREIN, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE.
This certifies that Bank of America, N.A. is the registered owner of the
Percentage Interest evidenced by this Certificate (as specified above) in that
certain beneficial ownership interest in the Trust Fund evidenced by all the
Certificates of the same Class as this Certificate. The Trust Fund was created
and the Certificates were issued pursuant to a Pooling and Servicing Agreement,
dated as specified above (the "Agreement"), among Banc of America Commercial
Mortgage Inc., as Depositor, and the Master Servicer, the Special Servicer and
the Trustee and REMIC Administrator identified above. To the extent not defined
herein, the capitalized terms used herein have the respective meanings assigned
in the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing upon the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of the Person entitled thereto, as such name and address
appear in the Certificate Register. Notwithstanding the above, the final
distribution in respect of this Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the offices of the Certificate Registrar
appointed as provided in the Agreement or such other location as may be
specified in such notice.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, Distribution Account and, if established, the REO Account
may be made from time to time for purposes other than, and, in certain cases,
prior to, distributions to Certificateholders, such purposes including the
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
Each Person who has or who acquires any Ownership Interest in this
Certificate shall be deemed by the acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the provisions of Section 5.02(d) of the
Agreement and, if any purported Transferee shall become a Holder of this
Certificate in violation of the provisions of such Section 5.02(d), to have
irrevocably authorized the Trustee under clause (ii) of such Section 5.02(d) to
deliver payments to a Person other than such Person and to have irrevocably
authorized the Trustee under clause (ii) of such Section 5.02(d) to negotiate
the terms of any mandatory disposition and to execute all instruments of
transfer and to do all other things necessary in connection with any such
disposition. Each Person holding or acquiring any Ownership Interest in this
Certificate must be a Permitted Transferee and shall promptly notify the Master
Servicer and the Trustee and REMIC Administrator of any change or impending
change in its status as a Permitted Transferee. In connection with any proposed
transfer of any Ownership Interest in this Certificate, the Certificate
Registrar shall require delivery to it, and shall not register the transfer of
this Certificate until its receipt of, an affidavit and agreement substantially
in the form attached as Exhibit C-1 to the Agreement (a "Transfer Affidavit and
Agreement") from the proposed Transferee, in form and substance satisfactory to
the Certificate Registrar, representing and warranting, among other things, that
such Transferee is a Permitted Transferee, that it is not acquiring its
Ownership Interest in this Certificate as a nominee, trustee or agent for any
Person that is not a Permitted Transferee, that for so long as it retains its
Ownership Interest in this Certificate, it will endeavor to remain a Permitted
Transferee, and that it has reviewed the provisions of Section 5.02(d) of the
Agreement and agrees to be bound by them. Notwithstanding the delivery of a
Transfer Affidavit and Agreement by a proposed Transferee, if the Certificate
Registrar has actual knowledge that the proposed Transferee is not a Permitted
Transferee, the Certificate Registrar shall not register the Transfer of an
Ownership Interest in this Certificate to such proposed Transferee.
Each Person holding or acquiring any Ownership Interest in this Certificate
shall agree (x) to require a Transfer Affidavit and Agreement from any other
Person to whom such Person attempts to transfer its Ownership Interest herein
and (y) not to transfer its Ownership Interest herein unless it provides to the
Certificate Registrar a certificate substantially in the form attached as
Exhibit C-2 to the Agreement stating that, among other things, it has no actual
knowledge that such other Person is not a Permitted Transferee.
A "Permitted Transferee" is any Transferee that is not a Plan or a Person
acting on behalf of or using the assets of a Plan, a Disqualified Organization,
a Non-United States Person or any Person the income of which is attributable to
a foreign permanent establishment or fixed base, within the meaning of an
applicable income tax treaty, of such Person or any other United States Person.
A "Disqualified Organization" is (i) the United States, any State or
political subdivision thereof, any possession of the United States, or any
agency or instrumentality of any of the foregoing (other than an instrumentality
which is a corporation if all of its activities are subject to tax and, except
for the Xxxxxxx Mac, a majority of whose board of directors is not selected by
such governmental unit), (ii) a foreign government, any international
organization, or any agency or instrumentality of any of the foregoing, (iii)
any organization (other than certain farmers' cooperatives described in Section
521 of the Code) which is exempt from the tax imposed by Chapter 1 of the Code
(unless such organization is subject to the tax imposed by Section 511 of the
Code on unrelated business taxable income), (iv) rural electric and telephone
cooperatives described in Section 1381 of the Code and (v) any other Person so
designated by the REMIC Administrator based upon an opinion of counsel that the
holding of an Ownership Interest in a Residual Certificate by such Person may
cause the Trust Fund or any Person having an Ownership Interest in any Class of
Certificates (other than such Person) to incur a liability for any federal tax
imposed under the Code that would not otherwise be imposed but for the Transfer
of an Ownership Interest in a Residual Certificate to such Person. The terms
"United States", "State" and "international organization" shall have the
meanings set forth in Section 7701 of the Code or successor provisions.
A "Non United States Person" is (a) any Person other than a United States
Person or (b) any Person the income of which is attributable to a foreign
permanent establishment or fixed base, within the meaning of an applicable
income tax treaty, of such Person or any other United States Person. A "United
States Person" is a citizen or resident of the United States, a corporation or
partnership (except to the extent provided in 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:
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred for, or
issued in exchange for or upon Remaining Principal
transfer of, an interest in this Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
________________________________________________________________________________
Dated:
--------------------------------------
Signature by or on behalf of Assignor
--------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ______________________________________
for the account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and
notices should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-29
Form of Class R-TM Certificate
CLASS R-TM COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2006-1
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:
March 1, 2006 100%
Cut-off Date: Initial Pool Balance: $[2,037,667,323]
March 1, 2006
Issue Date:
March 14, 2006
First Distribution Date:
April 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, X.X. Xxxxx Fargo Bank, N.A.
Special Servicer:
Midland Loan Services, Inc.
Certificate No.: R-TM-[__]
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., MIDLAND LOAN
SERVICES, INC., XXXXX FARGO BANK, N.A. OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS, IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (a)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY PERSON WHICH IS
AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY GOVERNMENTAL
PLAN, AS DEFINED IN SECTION 3(32) OF ERISA, SUBJECT TO ANY FEDERAL, STATE OR
LOCAL LAW WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN"), OR ANY PERSON ACTING ON BEHALF OF OR
INVESTING THE ASSETS OF A PLAN.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE EVIDENCES THE "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
CONSEQUENTLY, THE TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL
TAX RELATED TRANSFER RESTRICTIONS AS SET FORTH IN SECTION 5.02 OF THE AGREEMENT.
EACH TRANSFEREE OF THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE
ACCEPTED THIS CERTIFICATE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY. IF
ANY PERSON BECOMES THE REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF
SUCH TRANSFER RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL
FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A
CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER OR UNDER THE AGREEMENT REFERRED TO
HEREIN, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE.
This certifies that Bank of America, N.A. is the registered owner of the
Percentage Interest evidenced by this Certificate (as specified above) in that
certain beneficial ownership interest in the Trust Fund evidenced by all the
Certificates of the same Class as this Certificate. The Trust Fund was created
and the Certificates were issued pursuant to a Pooling and Servicing Agreement,
dated as specified above (the "Agreement"), among Banc of America Commercial
Mortgage Inc., as Depositor, and the Master Servicer, the Special Servicer and
the Trustee and REMIC Administrator identified above. To the extent not defined
herein, the capitalized terms used herein have the respective meanings assigned
in the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing upon the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of the Person entitled thereto, as such name and address
appear in the Certificate Register. Notwithstanding the above, the final
distribution in respect of this Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the offices of the Certificate Registrar
appointed as provided in the Agreement or such other location as may be
specified in such notice.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, Distribution Account and, if established, the REO Account
may be made from time to time for purposes other than, and, in certain cases,
prior to, distributions to Certificateholders, such purposes including the
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
Each Person who has or who acquires any Ownership Interest in this
Certificate shall be deemed by the acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the provisions of Section 5.02(d) of the
Agreement and, if any purported Transferee shall become a Holder of this
Certificate in violation of the provisions of such Section 5.02(d), to have
irrevocably authorized the Trustee under clause (ii) of such Section 5.02(d) to
deliver payments to a Person other than such Person and to have irrevocably
authorized the Trustee under clause (ii) of such Section 5.02(d) to negotiate
the terms of any mandatory disposition and to execute all instruments of
transfer and to do all other things necessary in connection with any such
disposition. Each Person holding or acquiring any Ownership Interest in this
Certificate must be a Permitted Transferee and shall promptly notify the Master
Servicer and the Trustee and REMIC Administrator of any change or impending
change in its status as a Permitted Transferee. In connection with any proposed
transfer of any Ownership Interest in this Certificate, the Certificate
Registrar shall require delivery to it, and shall not register the transfer of
this Certificate until its receipt of, an affidavit and agreement substantially
in the form attached as Exhibit C-1 to the Agreement (a "Transfer Affidavit and
Agreement") from the proposed Transferee, in form and substance satisfactory to
the Certificate Registrar, representing and warranting, among other things, that
such Transferee is a Permitted Transferee, that it is not acquiring its
Ownership Interest in this Certificate as a nominee, trustee or agent for any
Person that is not a Permitted Transferee, that for so long as it retains its
Ownership Interest in this Certificate, it will endeavor to remain a Permitted
Transferee, and that it has reviewed the provisions of Section 5.02(d) of the
Agreement and agrees to be bound by them. Notwithstanding the delivery of a
Transfer Affidavit and Agreement by a proposed Transferee, if the Certificate
Registrar has actual knowledge that the proposed Transferee is not a Permitted
Transferee, the Certificate Registrar shall not register the Transfer of an
Ownership Interest in this Certificate to such proposed Transferee.
Each Person holding or acquiring any Ownership Interest in this Certificate
shall agree (x) to require a Transfer Affidavit and Agreement from any other
Person to whom such Person attempts to transfer its Ownership Interest herein
and (y) not to transfer its Ownership Interest herein unless it provides to the
Certificate Registrar a certificate substantially in the form attached as
Exhibit C-2 to the Agreement stating that, among other things, it has no actual
knowledge that such other Person is not a Permitted Transferee.
A "Permitted Transferee" is any Transferee that is not a Plan or a Person
acting on behalf of or using the assets of a Plan, a Disqualified Organization,
a Non-United States Person or any Person the income of which is attributable to
a foreign permanent establishment or fixed base, within the meaning of an
applicable income tax treaty, of such Person or any other United States Person.
A "Disqualified Organization" is (i) the United States, any State or
political subdivision thereof, any possession of the United States, or any
agency or instrumentality of any of the foregoing (other than an instrumentality
which is a corporation if all of its activities are subject to tax and, except
for the Xxxxxxx Mac, a majority of whose board of directors is not selected by
such governmental unit), (ii) a foreign government, any international
organization, or any agency or instrumentality of any of the foregoing, (iii)
any organization (other than certain farmers' cooperatives described in Section
521 of the Code) which is exempt from the tax imposed by Chapter 1 of the Code
(unless such organization is subject to the tax imposed by Section 511 of the
Code on unrelated business taxable income), (iv) rural electric and telephone
cooperatives described in Section 1381 of the Code and (v) any other Person so
designated by the REMIC Administrator based upon an opinion of counsel that the
holding of an Ownership Interest in a Residual Certificate by such Person may
cause the Trust Fund or any Person having an Ownership Interest in any Class of
Certificates (other than such Person) to incur a liability for any federal tax
imposed under the Code that would not otherwise be imposed but for the Transfer
of an Ownership Interest in a Residual Certificate to such Person. The terms
"United States", "State" and "international organization" shall have the
meanings set forth in Section 7701 of the Code or successor provisions.
A "Non United States Person" is (a) any Person other than a United States
Person or (b) any Person the income of which is attributable to a foreign
permanent establishment or fixed base, within the meaning of an applicable
income tax treaty, of such Person or any other United States Person. A "United
States Person" is a citizen or resident of the United States, a corporation or
partnership (except to the extent provided in 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-TM Certificates referred to in the within
mentioned Agreement.
Dated:
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred for, or
issued in exchange for or upon Remaining Principal
transfer of, an interest in this Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
________________________________________________________________________________
Dated:
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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-30
Form of Class V Certificate
CLASS V COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2006-1
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:
March 1, 2006 [100]%
Cut-off Date: Initial Pool Balance: $$[2,037,667,323]
March 1, 2006
Issue Date:
March 14, 2006
First Distribution Date:
April 10, 2006
Master Servicer: Trustee and REMIC Administrator:
Bank of America, X.X. Xxxxx Fargo Bank, N.A.
Special Servicer:
Midland Loan Services, Inc.
Certificate No.: V-[__]
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BANC OF
AMERICA COMMERCIAL MORTGAGE INC., BANK OF AMERICA, N.A., MIDLAND LOAN
SERVICES, INC., XXXXX FARGO BANK, N.A. OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED AN INVESTMENT REPRESENTATION LETTER FROM THE
PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND SUBSTANCE
SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE EFFECT THAT
SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT PLAN
SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION
4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL,
STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO
THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II) A PERSON
ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY
WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE
ENTITY BY SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss.
2510.3-101).
THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND DOES NOT
ENTITLE THE HOLDER HEREOF TO ANY DISTRIBUTIONS OF PRINCIPAL. THE HOLDER HEREOF
WILL BE ENTITLED TO DISTRIBUTIONS OF EXCESS INTEREST RECEIVED ON THE MORTGAGE
POOL AS PROVIDED IN THE AGREEMENT.
This certifies that Citigroup Global Markets 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:
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred for, or
issued in exchange for or upon Remaining Principal
transfer of, an interest in this Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named
assignee and delivery of such Commercial Mortgage Pass-Through Certificate to
the following address: _________________________________________________________
________________________________________________________________________________
Dated:
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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 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.
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 2006-1
Ladies and Gentlemen:
This letter is delivered pursuant to Section 5.02 of the Pooling and
Servicing Agreement dated as of March 1, 2006 (the "Pooling and Servicing
Agreement"), by and among Banc of America Commercial Mortgage Inc., as
Depositor, Bank of America, N.A., as Master Servicer, Midland Loan Services,
Inc., as Special Servicer, 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 2006-1 (the
"Certificates"), in connection with the transfer by _________________ (the
"Seller") to the undersigned (the "Purchaser") of $_______________ aggregate
Certificate Balance of Class ___ Certificates (the "Certificate"). Capitalized
terms used and not otherwise defined herein shall have the respective meanings
ascribed to such terms in the Pooling and Servicing Agreement.
In connection with such transfer, the Purchaser hereby represents
and warrants to you and the addressees hereof as follows:
(a) Check one of the following:*
|_| The Purchaser is an institutional "accredited investor" (an
entity meeting the requirements of Rule 501(a)(1), (2), (3) or (7) of Regulation
D under the Securities Act of 1933, as amended (the "1933 Act")) and has such
knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks of its investment in the Certificates, and the
Purchaser and any accounts for which it is acting are each able to bear the
economic risk of the Purchaser's or such account's investment. The Purchaser is
acquiring the Certificates purchased by it for its own account or for one or
more accounts (each of which is an "institutional accredited investor") as to
each of which the Purchaser exercises sole investment discretion. The Purchaser
hereby undertakes to reimburse the Trust Fund for any costs incurred by it in
connection with this transfer.
--------
* 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.
(b) The Purchaser's intention is to acquire the Certificate (a) for
investment for the Purchaser's own account or (b) for resale (i) to
"qualified institutional buyers" in transactions under Rule 144A, and not
in any event with the view to, or for resale in connection with, any
distribution thereof, or (ii) to institutional "accredited investors"
meeting the requirements of Rule 501(a)(1), (2), (3) or (7) of Regulation
D promulgated under the 1933 Act and applicable state securities laws,
pursuant to any other exemption from the registration requirements of the
1933 Act and applicable state securities laws, subject in the case of this
clause (ii) to (w) the receipt by the Certificate Registrar of a letter
substantially in the form hereof, (x) the receipt by the Certificate
Registrar of an opinion of counsel acceptable to the Certificate Registrar
that such reoffer, resale, pledge or transfer is in compliance with the
1933 Act, (y) the receipt by the Certificate Registrar of such other
evidence acceptable to the Certificate Registrar that such reoffer,
resale, pledge or transfer is in compliance with the 1933 Act and other
applicable laws and (z) a written undertaking to reimburse the Trust for
any costs incurred by it in connection with the proposed transfer. The
Purchaser understands that the Certificate (and any subsequent
Certificate) has not been registered under the 1933 Act, by reason of a
specified exemption from the registration provisions of the 1933 Act which
depends upon, among other things, the bona fide nature of the Purchaser's
investment intent (or intent to resell to only certain investors in
certain exempted transactions) as expressed herein.
(c) The Purchaser has reviewed the Private Placement Memorandum
relating to the Certificates (the "Private Placement Memorandum") and the
agreements and other materials referred to therein and has had the
opportunity to ask questions and receive answers concerning the terms and
conditions of the transactions contemplated by the Private Placement
Memorandum.
(d) The Purchaser acknowledges that the Certificate (and any
Certificate issued on transfer or exchange thereof) has not been
registered or qualified under the 1933 Act or the securities laws of any
State or any other jurisdiction, and that the Certificate cannot be resold
unless it is registered or qualified thereunder or unless an exemption
from such registration or qualification is available.
(e) The Purchaser hereby undertakes to be bound by the terms and
conditions of the Pooling and Servicing Agreement in its capacity as an
owner of a Certificate or Certificates, as the case may be (each, a
"Certificateholder"), in all respects as if it were a signatory thereto.
This undertaking is made for the benefit of the Trust, the Certificate
Registrar and all Certificateholders present and future.
(f) The Purchaser will not sell or otherwise transfer any portion of
the Certificate or Certificates, except in compliance with Section 5.02 of
the Pooling and Servicing Agreement.
(g) Check one of the following:*
|_| The Purchaser is a U.S. Tax Person (as defined below) and it has
attached hereto an Internal Revenue Service ("IRS") Form W-9 (or successor
form).
|_| The Purchaser is not a "U.S. Tax Person" and under applicable
law in effect on the date hereof, no taxes will be required to be withheld by
the Certificate Registrar (or its agent) with respect to distributions to be
made on the Certificate. The Purchaser has attached hereto [(i) a duly executed
IRS Form W-8BEN (or successor form), which identifies such Purchaser as the
beneficial owner of the Certificate and states that such Purchaser is not a U.S.
Tax Person, (ii) two duly executed copies of IRS Form W-8IMY (with all
appropriate attachments) or (iii)]** two duly executed copies of IRS Form W-8ECI
(or successor form), which identify such Purchaser as the beneficial owner of
the Certificate and state that interest and original interest discount on the
Certificate and Permitted Investments is, or is expected to be, effectively
connected with a United States trade or business. The Purchaser agrees to
provide to the Certificate Registrar updated IRS Form [W-8BEN, IRS Form W-8IMY
or IRS Forms W-8ECI, as the case may be]**, any applicable successor IRS forms,
or such other certifications as the Certificate Registrar may reasonably
request, on or before the date that any such IRS form or certification expires
or becomes obsolete, or promptly after the occurrence of any event requiring a
change in the most recent IRS form of certification furnished by it to the
Certificate Registrar.
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, Class R-II and Class R-TM.
(h) Please make all payments due on the Certificates:***
|_| (A) by wire transfer to the following account at a bank or
entity in New York, New York, having appropriate facilities therefor:
Bank: _________________________________________
ABA#: _________________________________________
Account #: ___________________________________
Attention: ___________________________________
|_| (B) by mailing a check or draft to the following address:
------------------------------------------------
------------------------------------------------
------------------------------------------------
Very truly yours,
--------------------------------------
[The Purchaser]
By:____________________________________
Name:
Title:
Dated:
*** Only to be filled out by Purchasers of Definitive Certificates. Please
select (a) or (b). For holders of Definitive Certificates, wire transfers are
only available if such holder's Definitive Certificates have an aggregate
Certificate Balance or Notional Amount, as applicable, of at least U.S.
$5,000,000.
EXHIBIT C-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
PURSUANT TO SECTION 5.02(d)(i)(B)
STATE OF )
) participation.:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says that:
(a) He/She is the [Title of Officer] of [Name of Prospective
Transferee] (the prospective transferee (the "Transferee") of a Banc of
America Commercial Mortgage Inc. Class R-[I] [II] Commercial Mortgage
Pass-Through Certificate, Series 2006-1, 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. A "Permitted Transferee"
is any person other than a "disqualified organization" or a "non United
States person". (For this purpose: (i) a "disqualified organization" means
the United States or a possession thereof, any state or political
subdivision thereof, any agency or instrumentality of any of the foregoing
(other than an instrumentality, all of the activities of which are subject
to tax and, except for the Federal Home Loan Mortgage Corporation, a
majority of whose board of directors is not selected by any such
governmental entity) or any foreign government, international organization
or any agency or instrumentality of such foreign government or
organization, any rural electric or telephone cooperative, or any
organization (other than certain farmers' cooperatives) that is generally
exempt from federal income tax (unless such organization is subject to the
tax on unrelated business taxable income); and (ii) a "non United States
person" is any person other than a "United States person". A "United
States person" is a citizen or resident of the United States, a
corporation or partnership created or organized in, or under the laws of,
the United States, any state or the District of Columbia, including any
entity treated as a corporation or partnership for federal income tax
purposes, or an estate whose income is subject to United States federal
income tax regardless of its source, or a trust if a court within the
United States is able to exercise primary supervision over the
administration of the trust and one or more United States persons have the
authority to control all substantial decisions of the trust, all within
the meaning of Section 7701(a)(30) of the Code.)
(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
Re: Banc of America Commercial Mortgage Inc. Commercial Mortgage
Pass-Through Certificates, Series 2006-1, 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 March 1, 2006, by and among Banc of
America Commercial Mortgage Inc., as Depositor, Bank of America, N.A., as Master
Servicer, Midland Loan Services, Inc., as Special Servicer 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
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 March 1, 2006 (the "Pooling and Servicing Agreement"), by
and among Banc of America Commercial Mortgage Inc., as Depositor, Bank of
America, N.A., as Master Servicer, Midland Loan Services, Inc., as Special
Servicer 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, N.A.
By:____________________________________
Name:
Title:
Phone:
MIDLAND LOAN SERVICES, INC.
By:____________________________________
Name:
Title:
Phone:
Please deliver the Mortgage File as follows:
-----------------------------------
-----------------------------------
-----------------------------------
Attention: _______________________
Phone: __________________________
EXHIBIT E
FORM OF ERISA REPRESENTATION LETTER
Xxxxx Fargo Bank, X.X.
Xxxxx Fargo Center
Sixth and Marquette
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attn: Corporate (CMBS) Securities
Banc of America Commercial Mortgage Inc.
000 Xxxxx Xxxxx Xxxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Re: Transfer of Banc of America Commercial Mortgage Inc. Commercial Mortgage
Pass-Through Certificates, Series 2006-1
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 2006-1, Class __ (the
"Certificate") issued pursuant to that Pooling and Servicing Agreement, dated as
of March 1, 2006 (the "Pooling and Servicing Agreement"), by and among Banc of
America Commercial Mortgage Inc., as Depositor, Bank of America, N.A., as Master
Servicer, Midland Loan Services, Inc., as Special Servicer and Xxxxx Fargo Bank,
N.A., as Trustee and REMIC Administrator. Capitalized terms used and not
otherwise defined herein have the respective meanings ascribed to such terms in
the Pooling and Servicing Agreement.
In connection with such transfer, the undersigned hereby represents
and warrants to you as follows:
(a) The Purchaser either is not (a) an employee benefit plan subject
to the fiduciary responsibility provisions of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA") or a plan subject to
Section 4975 of the Internal Revenue Code of 1986, as amended (the
"Code"), or a governmental plan (as defined in Section 3(32) of ERISA)
subject to any federal, state or local law ("Similar Law") which is, to a
material extent, similar to the foregoing provisions of ERISA or the Code
(each a "Plan") or (b) a person acting on behalf of or using the assets of
any such Plan (including an entity whose underlying assets include Plan
assets by reason of investment in the entity by any such Plan and the
application of Department of Labor Regulation ss. 2510.3-101), other than
(except with respect to the Class V Certificates and the Residual
Certificates) an insurance company using the assets of its general account
under circumstances whereby the purchase and holding of Offered Private
Certificates by such insurance company would be exempt from the prohibited
transaction provisions of ERISA and the Code under both Sections I and III
of Prohibited Transaction Class Exemption 95-60, or (except with respect
to the Class V Certificates and the Residual Certificates) will deliver
the opinion contemplated by 3 below.
(b) Except for the Class V Certificates and the Residual
Certificates (which may not transferred unless the Purchaser can make the
representation described in 1 above), the Purchaser is purchasing
Certificates, which at the time of purchase are rated "BBB-" or better by
at least one of Fitch, Inc., Standard & Poor's Ratings Services, a
division of The XxXxxx-Xxxx Companies, Inc. or Xxxxx'x Investors Service,
Inc., and the Purchaser (a) is purchasing the Certificates pursuant to
Prohibited Transaction Exemption 93-31 and (b) is an "accredited investor"
as defined in Rule 501(a)(1) of Regulation D of the Securities and
Exchange Commission under the Securities Act of 1933, as amended.
(c) Except for the Class V Certificates and the Residual
Certificates (which may not transferred unless the Purchaser can make the
representation described in 1 above), the Purchaser understands that if
the Purchaser is a Person referred to in 1(a) or (b) above and cannot make
the representation in 2 above, such Purchaser is required to provide to
the Certificate Registrar an opinion of counsel in form and substance
satisfactory to the Certificate Registrar and the Depositor to the effect
that the acquisition and holding of such Certificate by such purchaser or
transferee will not constitute or result in a non-exempt "prohibited
transaction" within the meaning of ERISA, Section 4975 of the Code or any
Similar Law, and will not subject the Trustee, the Certificate Registrar,
the Master Servicer, the Special Servicer, the Placement Agent or the
Depositor to any obligation or liability (including obligations or
liabilities under ERISA, Section 4975 of the Code or any such Similar Law)
in addition to those set forth in the Pooling and Servicing Agreement,
which Opinion of Counsel will not be at the expense of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Placement Agent,
the Certificate Registrar or the Trust Fund.
IN WITNESS WHEREOF, the Purchaser hereby executes this ERISA
Representation Letter on the ___th day of _____, ____.
Very truly yours,
---------------------------------------------
[The Purchaser]
By:____________________________________
Name:
Title:
EXHIBIT F
FORM OF CUSTODIAL CERTIFICATION
[Date]
Banc of America Commercial Mortgage Inc.,
as Depositor
000 Xxxxx Xxxxx Xxxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxx
Re: Pooling and Servicing Agreement dated as of March 1, 2006 (the
"Agreement") by and among Banc of America Commercial Mortgage Inc. as
Depositor, Bank of America, N.A., as Master Servicer, Midland Loan
Services, Inc., as Special Servicer and Xxxxx Fargo Bank, N.A., as
Trustee and REMIC Administrator for the Certificateholders of Commercial
Mortgage Pass-Through Certificates, Series 2006-1
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
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 2006-1 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 04/10/2006
Xxxxxxxx, XX 00000-0000 Determination Date:04/04/2006 Record Date: 03/31/2006
-----------------------------------------------------------------------------------------------------------------------------------
DISTRIBUTION DATE STATEMENT
Table of Contents
-------------------------------------------------------------------------------
STATEMENT SECTIONS PAGE(s)
------------------ -------
Certificate Distribution Detail 2
Certificate Factor Detail 3
Reconciliation Detail 4
Other Required Information 5
Cash Reconciliation 6
Ratings Detail 7
Current Mortgage Loan and Property Stratification Tables 8 - 16
Mortgage Loan Detail 17
Principal Prepayment Detail 18
Historical Detail 19
Delinquency Loan Detail 20
Specially Serviced Loan Detail 21 - 22
Modified Loan Detail 23
Liquidated Loan Detail 24
Bond/Collateral Realized Loss Reconciliation 25
Suppelemental Reporting 26
-------------------------------------------------------------------------------
Depositor Master Servicer Special Servicer
-------------------------------------- -------------------------------------------- ---------------------------------------
Banc of America Commercial Mortgage Bank of America, N.A. Midland Loan Services, Inc
000 Xxxxx Xxxxx Xxxxxx 000 Xxxx Xxxxx Xxxxxx 00000 Xxxxxx Xxxxxx, Xxxxxxxx 00
Xxxxxxxxx, XX 00000 Suite 650 Overland Park, KS 66210
Xxxxxxxxx, XX 00000
Contact: Xxxxxxx Xxxxx Contact: Capital Markets Servicing Group Contact: Xxxx Xxxxxx
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 19
--------- ----------------------------------------------
|[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 2006-1 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 04/10/2006
Xxxxxxxx, XX 00000-0000 Determination Date:04/04/2006 Record Date: 03/31/2006
-----------------------------------------------------------------------------------------------------------------------------------
Certificate Distribution Detail
-----------------------------------------------------------------------------------------------------------------------------------
Realized Loss / Current
Pass-Through Original Beginning Principal Interest Prepayment Additional Trust Total Ending Subordination
Class CUSIP Rate Balance Balance Distribution Distribution Premium Fund Expenses Distribution Balance Level(1)
-----------------------------------------------------------------------------------------------------------------------------------
A-1 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-2 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-3A 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-3B 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-SBFL 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
Q 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
R-TM 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 26
--------- ----------------------------------------------
|[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 2006-1 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 04/10/2006
Xxxxxxxx, XX 00000-0000 Determination Date:04/04/2006 Record Date: 03/31/2006
-----------------------------------------------------------------------------------------------------------------------------------
Certificate Factor Detail
--------------------------------------------------------------------------------------------------------------
Realized Loss /
Beginning Principal Interest Prepayment Additional Trust Ending
Class CUSIP Balance Distribution Distribution Premium Fund Expenses Balance
--------------------------------------------------------------------------------------------------------------
A-1 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-2 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-3A 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-3B 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-SBFL 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
Q 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
R-TM 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
--------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------
Beginning Ending
Notional Interest Prepayment Notional
Class CUSIP Amount Distribution Premium Amount
---------------------------------------------------------------------------
X-P 0.00000000 0.00000000 0.00000000 0.00000000
X-C 0.00000000 0.00000000 0.00000000 0.00000000
---------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 3 of 26
--------- ----------------------------------------------
|[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 2006-1 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 04/10/2006
Xxxxxxxx, XX 00000-0000 Determination Date:04/04/2006 Record Date: 03/31/2006
-----------------------------------------------------------------------------------------------------------------------------------
Reconciliation Detail
Advance Summary Master Servicing Fee Summary
P & I Advances Outstanding 0.00 Current Period Accrued Master Servicing Fees 0.00
Servicing Advances Outstanding 0.00 Less Master Servicing Fees on Delinquent Payments 0.00
Less Reductions to Master Servicing Fees 0.00
Reimbursement for Interest on P & I 0.00
Advances paid from general collections Plus Master Servicing Fees for Delinquent Payments Received 0.00
Plus Adjustments for Prior Master Servicing Calculation 0.00
Reimbursement for Interest on Servicing 0.00
Advances paid from general collections Total Master Servicing Fees Collected 0.00
Certificate Interest Reconciliation
-----------------------------------------------------------------------------------------------------------------------------------
Net Remaining
Aggregate Distributable Unpaid
Accrued Prepayment Distributable Certificate Additional Distributable
Accrual Certificate Interest Certificate Interest WAC CAP Trust Fund Interest Certificate
Class Days Interest Shortfall Interest Adjustment Shortfall Expenses Distribution Interest
-----------------------------------------------------------------------------------------------------------------------------------
A-1 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-2 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-3A 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-3B 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-SBFL 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-4 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-1A 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-M 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-J 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
B 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
C 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
D 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
E 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
F 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
G 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
H 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
J 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
K 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
L 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
M 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
N 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
O 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
P 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Q 0 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
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 4 of 26
--------- ----------------------------------------------
|[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 2006-1 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 04/10/2006
Xxxxxxxx, XX 00000-0000 Determination Date:04/04/2006 Record Date: 03/31/2006
-----------------------------------------------------------------------------------------------------------------------------------
Other Required Information
------------------------------------------------------------------------------------------------
Available Distribution Amount(1) 0.00
Aggregate Number of Outstanding Loans 0
Aggregate Unpaid Principal Balance of Loans 0.00
Aggregate Stated Principal Balance Loans 0.00
Aggregate Amount of Servicing Fee 0.00
Aggregate Amount of Special Servicing Fee 0.00
Aggregate Amount of Trustee Fee 0.00
Aggregate Stand-by Fee 0.00
Aggregate Paying Agent Fee 0.00
Aggregate Trust Fund Expenses 0.00
Additional Trust Fund Expenses 0.00
Fees Paid to Special Servicer 0.00
Interest on Advances 0.00
Other Expenses of Trust 0.00
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 26
--------- ----------------------------------------------
|[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 2006-1 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 04/10/2006
Xxxxxxxx, XX 00000-0000 Determination Date:04/04/2006 Record Date: 03/31/2006
-----------------------------------------------------------------------------------------------------------------------------------
Cash Reconciliation Detail
---------------------------------------------------------------------------------------------------------------------------------
Total Funds Collected
Interest:
Interest paid or advanced 0.00
Interest reductions due to Non-Recoverability Determinations 0.00
Interest Adjustments 0.00
Deferred Interest 0.00
Net Prepayment Interest Shortfall 0.00
Net Prepayment Interest Excess 0.00
Extension Interest 0.00
Interest Reserve Withdrawal 0.00
--------------
Total Interest Collected 0.00
Principal:
Scheduled Principal 0.00
Unscheduled Principal 0.00
Principal Prepayments 0.00
Collection of Principal after Maturity Date 0.00
Recoveries from Liquidation and Insurance Proceeds 0.00
Excess of Prior Principal Amounts paid 0.00
Curtailments 0.00
Negative Amortization 0.00
Principal Adjustments 0.00
--------------
Total Principal Collected 0.00
Other:
Prepayment Penalties/Yield Maintenance 0.00
Repayment Fees 0.00
Borrower Option Extension Fees 0.00
Equity Payments Received 0.00
Net Swap Counterparty Payments Received 0.00
--------------
Total Other Collected 0.00
--------------
Total Funds Collected 0.00
==============
Total Funds Distributed
Fees:
Master Servicing Fee 0.00
Trustee Fee 0.00
Certificate Administration Fee 0.00
Insurer Fee 0.00
Miscellaneous Fee 0.00
--------------
Total Fees 0.00
Additional Trust Fund Expenses:
Reimbursement for Interest on Advances 0.00
ASER Amount 0.00
Special Servicing Fee 0.00
Rating Agency Expenses 0.00
Attorney Fees & Expenses 0.00
Bankruptcy Expense 0.00
Taxes Imposed on Trust Fund 0.00
Non-Recoverable Advances 0.00
Other Expenses 0.00
--------------
Total Additional Trust Fund Expenses 0.00
Interest Reserve Deposit
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 26
--------- ----------------------------------------------
|[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 2006-1 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 04/10/2006
Xxxxxxxx, XX 00000-0000 Determination Date:04/04/2006 Record Date: 03/31/2006
-----------------------------------------------------------------------------------------------------------------------------------
Ratings Detail
---------------------------------------------------------------------------------------------------------------
Original Ratings Current Ratings (1)
------------------------------------------------------------------------------
Class CUSIP Fitch Xxxxx'x S & P Fitch Xxxxx'x S & P
---------------------------------------------------------------------------------------------------------------
X-0
X-0
X-0X
X-0X
X-XXXX
X-0
A-1A
X-C
X-P
A-M
X-X
X
X
X
X
X
X
X
X
K
L
M
N
O
P
Q
---------------------------------------------------------------------------------------------------------------
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 26
--------- ----------------------------------------------
|[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 2006-1 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 04/10/2006
Xxxxxxxx, XX 00000-0000 Determination Date:04/04/2006 Record Date: 03/31/2006
-----------------------------------------------------------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Aggregate Pool
Scheduled Balance State (3)
---------------------------------------------------------------- ----------------------------------------------------------------
% of % of
Scheduled # of Scheduled Agg. WAM Weighted # of Scheduled Agg. WAM Weighted
Balance Loans Balance Bal. (2) WAC Avg DSCR (1) State Props Balance Bal. (2) WAC Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
See footnotes on last page of this section.
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 8 of 26
--------- ----------------------------------------------
|[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 2006-1 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 04/10/2006
Xxxxxxxx, XX 00000-0000 Determination Date:04/04/2006 Record Date: 03/31/2006
-----------------------------------------------------------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
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 26
--------- ----------------------------------------------
|[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 2006-1 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 04/10/2006
Xxxxxxxx, XX 00000-0000 Determination Date:04/04/2006 Record Date: 03/31/2006
-----------------------------------------------------------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Aggregate Pool
Anticipated Remaining Term (ARD and Balloon Loans) Remaining Stated Term (Fully Amortizing Loans)
---------------------------------------------------------------- ----------------------------------------------------------------
Anticipated % of Remaining % of
Remaining # of Scheduled Agg. WAM WAC Weighted Stated # of Scheduled Agg. WAM WAC Weighted
Term (2) Loans Balance Bal. (2) Avg DSCR (1) Term Loans Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
Remaining Amortization Term (ARD and Balloon Loans) Age of Most Financial Information
---------------------------------------------------------------- ----------------------------------------------------------------
Remaining % of Age of Most % of
Amortization # of Scheduled Agg. WAM WAC Weighted Recent Financial # of Scheduled Agg. WAM WAC Weighted
Term Loans Balance Bal. (2) Avg DSCR (1) Information Loans Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
(1) Debt Service Coverage Ratios are updated periodically as new financial information become available from borrowers on an
asset level. In all cases the most recent DSCR provided by the Master Servicer is used. To the extent that no DSCR is
provided by the Master Servicer, information from the offering document is used. The Trustee makes no representations as to
the accuracy of the data provided by for this calculation.
(2) Anticipated Remaining Term and WAM are each calculated based upon the term from the current month to the earlier of the
Anticipated Repayment Date, if applicable, and the maturity date.
(3) Data in this table was calculated by allocating pro-rata the current loan information to the properties based upon the
Cut-off Date balance of each property as disclosed in the offering document.
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 10 of 26
--------- ----------------------------------------------
|[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 2006-1 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 04/10/2006
Xxxxxxxx, XX 00000-0000 Determination Date:04/04/2006 Record Date: 03/31/2006
-----------------------------------------------------------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Group I
Scheduled Balance State (3)
---------------------------------------------------------------- ----------------------------------------------------------------
% of % of
Scheduled # of Scheduled Agg. WAM Weighted # of Scheduled Agg. WAM Weighted
Balance Loans Balance Bal. (2) WAC Avg DSCR (1) State Props Balance Bal. (2) WAC Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
See footnotes on last page of this section.
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 11 of 26
--------- ----------------------------------------------
|[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 2006-1 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 04/10/2006
Xxxxxxxx, XX 00000-0000 Determination Date:04/04/2006 Record Date: 03/31/2006
-----------------------------------------------------------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Group I
Debt Service Coverage Ratio Property Type (3)
---------------------------------------------------------------- ----------------------------------------------------------------
Debt Service % of % of
Coverage # of Scheduled Agg. WAM WAC Weighted Property # of Scheduled Agg. WAM WAC Weighted
Ratio Loans Balance Bal. (2) Avg DSCR (1) Type Props Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
Note Rate Seasoning
---------------------------------------------------------------- ----------------------------------------------------------------
% of % of
Note # of Scheduled Agg. WAM WAC Weighted # of Scheduled Agg. WAM WAC Weighted
Rate Loans Balance Bal. (2) Avg DSCR (1) Seasoning Loans Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
See footnotes on last page of this section.
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 12 of 26
--------- ----------------------------------------------
|[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 2006-1 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 04/10/2006
Xxxxxxxx, XX 00000-0000 Determination Date:04/04/2006 Record Date: 03/31/2006
-----------------------------------------------------------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Group I
Anticipated Remaining Term (ARD and Balloon Loans) Remaining Stated Term (Fully Amortizing Loans)
---------------------------------------------------------------- ----------------------------------------------------------------
Anticipated % of Remaining % of
Remaining # of Scheduled Agg. WAM WAC Weighted Stated # of Scheduled Agg. WAM WAC Weighted
Term (2) Loans Balance Bal. (2) Avg DSCR (1) Term Loans Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
Remaining Amortization Term (ARD and Balloon Loans) Age of Most Financial Information
---------------------------------------------------------------- ----------------------------------------------------------------
Remaining % of Age of Most % of
Amortization # of Scheduled Agg. WAM WAC Weighted Recent Financial # of Scheduled Agg. WAM WAC Weighted
Term Loans Balance Bal. (2) Avg DSCR (1) Information Loans Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
(1) Debt Service Coverage Ratios are updated periodically as new financial information become available from borrowers on an
asset level. In all cases the most recent DSCR provided by the Master Servicer is used. To the extent that no DSCR is
provided by the Master Servicer, information from the offering document is used. The Trustee makes no representations as to
the accuracy of the data provided by for this calculation.
(2) Anticipated Remaining Term and WAM are each calculated based upon the term from the current month to the earlier of the
Anticipated Repayment Date, if applicable, and the maturity date.
(3) Data in this table was calculated by allocating pro-rata the current loan information to the properties based upon the
Cut-off Date balance of each property as disclosed in the offering document.
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 13 of 26
--------- ----------------------------------------------
|[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 2006-1 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 04/10/2006
Xxxxxxxx, XX 00000-0000 Determination Date:04/04/2006 Record Date: 03/31/2006
-----------------------------------------------------------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Group II
Scheduled Balance State (3)
---------------------------------------------------------------- ----------------------------------------------------------------
% of % of
Scheduled # of Scheduled Agg. WAM Weighted # of Scheduled Agg. WAM Weighted
Balance Loans Balance Bal. (2) WAC Avg DSCR (1) State Props Balance Bal. (2) WAC Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
See footnotes on last page of this section.
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 14 of 26
--------- ----------------------------------------------
|[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 2006-1 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 04/10/2006
Xxxxxxxx, XX 00000-0000 Determination Date:04/04/2006 Record Date: 03/31/2006
-----------------------------------------------------------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Group II
Debt Service Coverage Ratio Property Type (3)
---------------------------------------------------------------- ----------------------------------------------------------------
Debt Service % of % of
Coverage # of Scheduled Agg. WAM WAC Weighted Property # of Scheduled Agg. WAM WAC Weighted
Ratio Loans Balance Bal. (2) Avg DSCR (1) Type Props Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
Note Rate Seasoning
---------------------------------------------------------------- ----------------------------------------------------------------
% of % of
Note # of Scheduled Agg. WAM WAC Weighted # of Scheduled Agg. WAM WAC Weighted
Rate Loans Balance Bal. (2) Avg DSCR (1) Seasoning Loans Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
See footnotes on last page of this section.
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 15 of 26
--------- ----------------------------------------------
|[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 2006-1 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 04/10/2006
Xxxxxxxx, XX 00000-0000 Determination Date:04/04/2006 Record Date: 03/31/2006
-----------------------------------------------------------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Group II
Anticipated Remaining Term (ARD and Balloon Loans) Remaining Stated Term (Fully Amortizing Loans)
---------------------------------------------------------------- ----------------------------------------------------------------
Anticipated % of Remaining % of
Remaining # of Scheduled Agg. WAM WAC Weighted Stated # of Scheduled Agg. WAM WAC Weighted
Term (2) Loans Balance Bal. (2) Avg DSCR (1) Term Loans Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
Remaining Amortization Term (ARD and Balloon Loans) Age of Most Financial Information
---------------------------------------------------------------- ----------------------------------------------------------------
Remaining % of Age of Most % of
Amortization # of Scheduled Agg. WAM WAC Weighted Recent Financial # of Scheduled Agg. WAM WAC Weighted
Term Loans Balance Bal. (2) Avg DSCR (1) Information Loans Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
(1) Debt Service Coverage Ratios are updated periodically as new financial information become available from borrowers on an
asset level. In all cases the most recent DSCR provided by the Master Servicer is used. To the extent that no DSCR is
provided by the Master Servicer, information from the offering document is used. The Trustee makes no representations as to
the accuracy of the data provided by for this calculation.
(2) Anticipated Remaining Term and WAM are each calculated based upon the term from the current month to the earlier of the
Anticipated Repayment Date, if applicable, and the maturity date.
(3) Data in this table was calculated by allocating pro-rata the current loan information to the properties based upon the
Cut-off Date balance of each property as disclosed in the offering document.
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 16 of 26
--------- ----------------------------------------------
|[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 2006-1 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 04/10/2006
Xxxxxxxx, XX 00000-0000 Determination Date:04/04/2006 Record Date: 03/31/2006
-----------------------------------------------------------------------------------------------------------------------------------
Mortgage Loan Detail
---------------------------------------------------------------------------------------------------------------------------
Anticipated Neg. Beginning Ending Paid
Loan Property Interest Principal Gross Repayment Maturity Amort Scheduled Scheduled Thru
Number ODCR Type (1) City State Payment Payment Coupon Date Date (Y/N) Balance Balance Date
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
Totals
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------
Appraisal Appraisal Res. Mod.
Loan Reduction Reduction Strat. Code
Number Date Amount (2) (3)
---------------------------------------------
---------------------------------------------
Totals
---------------------------------------------
--------------------------------------------------------------------------------
(1) Property Type Code
----------------------
MF - Multi-Family OF - Office
RT - Retail MU - Mixed Use
HC - Health Care LO - Lodging
IN - Industrial SS - Self Storage
WH - Warehouse OT - Other
MH - Mobile Home Park
(2) Resolution Strategy Code
----------------------------
1 - Modification 6 - DPO 10 - Deed in Lieu Of
2 - Foreclosure 7 - REO Foreclosure
3 - Bankruptcy 8 - Resolved 11 - Full Payoff
4 - Extension 9 - Pending Return 12 - Reps and Warranties
5 - Note Sale to Master Servicer 13 - Other or TBD
(3) Modification Code
---------------------
1 - Maturity Date Extension
2 - Amortization Change
3 - Principal Write-Off
4 - Combination
--------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 17 of 26
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | GS Mortgage Securities Corporation II | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2006-1 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 07/12/2005
Xxxxxxxx, XX 00000-0000 Record Date: 06/30/2005
-----------------------------------------------------------------------------------------------------------------------------------
Principal Prepayment Detail
------------------------------------------------------------------------------------------------------------------------------------
Principal Prepayment Amount Prepayment Premium
Offering Document ------------------------------------------------------------------------------------------
Loan Number Cross-Reference Payoff Amount Curtailment Amount Percentage Premium Yield Maintenance Charge
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Totals
------------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 18 of 26
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | GS Mortgage Securities Corporation II | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2006-1 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 07/12/2005
Xxxxxxxx, XX 00000-0000 Record Date: 06/30/2005
-----------------------------------------------------------------------------------------------------------------------------------
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 aging categories.
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 19 of 26
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | GS Mortgage Securities Corporation II | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2006-1 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 07/12/2005
Xxxxxxxx, XX 00000-0000 Record Date: 06/30/2005
-----------------------------------------------------------------------------------------------------------------------------------
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
-----------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------
Current Outstanding
Servicing Servicing Bankruptcy REO
Loan Number Advances 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 20 of 26
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 21 of 26
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | GS Mortgage Securities Corporation II | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2006-1 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 07/12/2005
Xxxxxxxx, XX 00000-0000 Record Date: 06/30/2005
-----------------------------------------------------------------------------------------------------------------------------------
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 22 of 26
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | GS Mortgage Securities Corporation II | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2005-GG4 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 07/12/2005
Xxxxxxxx, XX 00000-0000 Record Date: 06/30/2005
-----------------------------------------------------------------------------------------------------------------------------------
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
Number Modification Description
-------------------------------------
-------------------------------------
Totals
-------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 23 of 26
--------- ----------------------------------------------
|[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 2006-1 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 04/10/2006
Xxxxxxxx, XX 00000-0000 Determination Date:04/04/2006 Record Date: 03/31/2006
-----------------------------------------------------------------------------------------------------------------------------------
Liquidated Loan Detail
-----------------------------------------------------------------------------------------------------------------------------------
Final Recovery Offering Gross Proceeds Aggregate
Loan Determination Document Appraisal Appraisal Actual Gross as a % of Liquidation
Number Date Cross-Reference Date Value Balance Proceeds Actual Balance Expenses *
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Current Total
-----------------------------------------------------------------------------------------------------------------------------------
Cumulative Total
-----------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Net Net Proceeds Repurchased
Loan Liquidation as a % of Realized by Seller
Number Proceeds Actual Balance Loss (Y/N)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Current Total
--------------------------------------------------------------------------------
Cumulative Total
--------------------------------------------------------------------------------
* Aggregate liquidation expenses also include outstanding P & I advances and unpaid fees (servicing, trustee, etc.).
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 24 of 26
--------- ----------------------------------------------
|[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 2006-1 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 04/10/2006
Xxxxxxxx, XX 00000-0000 Determination Date:04/04/2006 Record Date: 03/31/2006
-----------------------------------------------------------------------------------------------------------------------------------
Bond/Collateral Reallized Loss Reconciliation
------------------------------------------------------------------------------------------------------------------------------------
Beginning Amounts
Balance of Aggregate Prior Realized Covered by Over- Interest (Shortage)/
Distribution Prospectus the Loan at Realized Loss Loss Applied collateralization and Excesses applied to
Date Id Liquidation on Loans to Certificates other Credit Support other Credit Support
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Current Total
------------------------------------------------------------------------------------------------------------------------------------
Cumulative Total
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Modification Additional
Adjustments/ (Recoveries)/ Current Realized Recoveries of (Recoveries)/Realized
Distribution Appraisal Reduction Expenses applied to Loss Applied to Realized Losses Loss Applied to
Date Adjustment Realized Losses Certificates Paid as Cash Certificate Interest
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Current Total
------------------------------------------------------------------------------------------------------------------------------------
Cumulative Total
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 25 of 26
--------- ----------------------------------------------
|[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 2006-1 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 04/10/2006
Xxxxxxxx, XX 00000-0000 Determination Date:04/04/2006 Record Date: 03/31/2006
-----------------------------------------------------------------------------------------------------------------------------------
Supplemental Reporting
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 26 of 26
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
Re: Pooling and Servicing Agreement dated as of March 1, 2006 (the
"Agreement") by and among Banc of America Commercial Mortgage Inc., as
Depositor, Bank of America, N.A., as Master Servicer, Midland Loan
Services, Inc., as Special Servicer and Xxxxx Fargo Bank, N.A., as
Trustee and REMIC Administrator for the Certificateholders of Commercial
Mortgage Pass-Through Certificates, Series 2006-1
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 2006-1
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 March 1, 2006, by and among Banc of America Commercial
Mortgage Inc., as depositor, Bank of America, N.A., as Master Servicer, Midland
Loan Services, Inc., as Special Servicer 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
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Commercial Mortgage Surveillance
From: Bank of America, N.A., in its capacity as Master Servicer (the "Master
Servicer") under the Pooling and Servicing Agreement dated as of March 1,
2006 (the "Pooling and Servicing Agreement"), among the Master Servicer,
Midland Loan Services, Inc., as Special Servicer and Xxxxx Fargo Bank,
N.A., as Trustee and REMIC Administrator.
Date: _________, 20___
Re: Banc of America Commercial Mortgage Inc. Commercial Mortgage
Pass-Through Certificates Series 2006-1
Mortgage Loan (the "Mortgage Loan") identified by loan number _____ on the
Mortgage Loan Schedule attached to the Pooling and Servicing Agreement and
heretofore secured by the Mortgaged Properties identified on the Mortgage
Loan Schedule by the following names:____________________
--------------------
Reference is made to the Pooling and Servicing Agreement described
above. Capitalized terms used but not defined herein have the meanings assigned
to such terms in the Pooling and Servicing Agreement. [Note: all terms in this
Certification must be conformed to terms used in the Pooling and Servicing
Agreement]
As Master Servicer under the Pooling and Servicing Agreement, we
hereby:
(a) Notify you that the Mortgagor has consummated a defeasance of
the Mortgage Loan pursuant to the terms of the Mortgage Loan, of the type
checked below:
______a full defeasance of the entire principal balance of the
Mortgage Loan; or
______a partial defeasance of a portion of the principal balance of
the Mortgage Loan that represents and, an allocated loan amount of $____________
or _______% of the entire principal balance of the Mortgage Loan;
(b) Certify that each of the following is true, subject to those
exceptions set forth with explanatory notes on Exhibit A hereto, which
exceptions the Master Servicer has determined, consistent with the
Servicing Standard, will have no material adverse effect on the Mortgage
Loan or the defeasance transaction:
(A) The Mortgage Loan Documents permit the defeasance, and the
terms and conditions for defeasance specified therein were satisfied
in all material respects in completing the defeasance.
(B) The defeasance was consummated on __________, 20__.
(C) The defeasance collateral consists of securities that (i)
constitute "government securities" as defined in Section 2(a)(16) of
the Investment Company Act of 1940 as amended (15 U.S.C. 80A1), (ii)
are listed as "Qualified Investments for `AAA' Financings" under
Paragraphs 1, 2 or 3 of "Cash Flow Approach" in Standard & Poor's
Public Finance Criteria 2000, as amended to the date of the
defeasance, (iii) are rated "AAA" by Standard & Poor's, (iv) if they
include a principal obligation, the principal due at maturity cannot
vary or change, and (v) are not subject to prepayment, call or early
redemption.
(D) The Master Servicer received an opinion of counsel (from
counsel approved by the Master Servicer in accordance with the
Servicing Standard) that the defeasance will not result in an
Adverse REMIC event.
(E) The Master Servicer determined that the defeasance
collateral will be owned by an entity (the "Defeasance Obligor")
that is a Single-Purpose Entity (as defined in Standard & Poor's
Structured Finance Ratings Real Estate Finance Criteria, as amended
to the date of the defeasance (the "S&P Criteria")) as of the date
of the defeasance, and after the defeasance owns no assets other
than the defeasance collateral and real property securing Mortgage
Loans included in the pool.
(F) The Master Servicer received written confirmation of the
crediting of the defeasance collateral to an Eligible Account (as
defined in the S&P Criteria) in the name of the Defeasance Obligor,
which account is maintained as a securities account by a securities
intermediary and has been pledged to the Trustee.
(G) The agreements executed in connection with the defeasance
(i) grant control of the pledged securities account to the trustee,
(ii) require the securities intermediary to make the scheduled
payments on the Mortgage Loan from the proceeds of the defeasance
collateral directly to the Master Servicer's collection account in
the amounts and on the dates specified in the Mortgage Loan
Documents or, in a partial defeasance, the portion of such scheduled
payments attributed to the allocated loan amount for the real
property defeased, increased by any defeasance premium specified in
the Mortgage Loan Documents (the "Scheduled Payments"), (iii) permit
reinvestment of proceeds of the defeasance collateral only in
Permitted Investments (as defined in the S&P Criteria), (iv) permit
release of surplus defeasance collateral and earnings on
reinvestment from the pledged securities account only after the
Mortgage Loan has been paid in full, if any such release is
permitted, (v) prohibit transfers by the Defeasance Obligor of the
Defeasance Collateral and subordinate liens against the defeasance
collateral, and (vi) provide for payment from sources other than the
defeasance collateral or other assets of the Defeasance Obligor of
all fees and expenses of the securities intermediary for
administering the defeasance and the securities account and all fees
and expenses of maintaining the existence of the Defeasance Obligor.
(H) The Master Servicer received written confirmation from a
firm of independent certified public accountants, who were approved
by the Master Servicer in accordance with the Servicing Standard
stating that (i) revenues from the defeasance collateral (without
taking into account any earnings on reinvestment of such revenues)
will be sufficient to timely pay each of the Scheduled Payments
after the defeasance including the payment in full of the Mortgage
Loan (or the allocated portion thereof in connection with a partial
defeasance) on its Maturity Date (or, in the case of an ARD Loan, on
its Anticipated Repayment Date), (ii) the revenues received in any
month from the defeasance collateral will be applied to make
Scheduled Payments within four (4) months after the date of receipt,
and (iii) interest income from the defeasance collateral to the
Defeasance Obligor in any calendar or fiscal year will not exceed
such Defeasance Obligor's interest expense for the Mortgage Loan (or
the allocated portion thereof in a partial defeasance) for such
year.
(I) The Mortgage Loan is not among the ten (10) largest loans
in the pool. The entire principal balance of the Mortgage Loan as of
the date of defeasance was less than both $20,000,000 and five
percent of pool balance, which is less than 5% of the aggregate
Certificate Balance of the Certificates as of the date of the most
recent Paying Agent's Monthly Certificateholder Report received by
us (the "Current Report").
(J) The defeasance described herein, together with all prior
and simultaneous defeasances of Mortgage Loans, brings the total of
all fully and partially defeased Mortgage Loans to
$__________________, which is _____% of the Aggregate Certificate
Balance of the Certificates as of the date of the Current Report.
(c) Certify that Exhibit B hereto is a list of the material
agreements, instruments, organizational documents for the Defeasance
Obligor, and opinions of counsel and independent accountants executed and
delivered in connection with the defeasance.
(d) Certify that the individual under whose hand the Master Servicer
has caused this Notice and Certification to be executed did constitute a
Servicing Officer as of the date of the defeasance described above.
(e) Agree to provide copies of all items listed in Exhibit B to you
upon request.
IN WITNESS WHEREOF, the Master Servicer has caused this Notice and
Certification to be executed as of the date captioned above.
BANK OF AMERICA, N.A.
By:____________________________________
Name:
Title:
EXHIBIT K
FORM OF CERTIFICATION TO BE PROVIDED WITH FORM 00-X
Xxxx xx Xxxxxxx Commercial Mortgage Inc.
Commercial Mortgage Pass-Through Certificates
Series 2006-1 (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 of the Trust formed pursuant to the Pooling and Servicing
Agreement (the ("Pooling and Servicing Agreement") dated as of March 1,
2006 among Banc of America Commercial Mortgage Inc., as Depositor, Bank of
America, N.A., as Master Servicer, Midland Loan Services, Inc., as Special
Servicer and Xxxxx Fargo Bank, N.A., as Trustee and REMIC Administrator;
(b) Based on my knowledge, the Exchange Act periodic reports, taken
as a whole, does not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements made, in
light of the circumstances under which such statements were made, not
misleading as of the last day of the period covered by this annual report;
(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; and
(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 2006-1 (the "Trust"),
Commercial Mortgage Pass-Through Certificates, Series 2006-1
---------------------------------------------------------------
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 March 1, 2006, among Banc of
America Commercial Mortgage Inc., as Depositor, Bank of America, N.A., as Master
Servicer, Midland Loan Services, Inc., as Special Servicer and Xxxxx Fargo Bank,
N.A., as Trustee and REMIC Administrator certify to [identify the individual
signing the Xxxxxxxx-Xxxxx Certification], the Depositor and its partners,
representatives, affiliates, members, managers, directors, officers, employees
and agents, to the extent that the following information is within our normal
area of responsibilities and duties under the Pooling and Servicing Agreement,
and with the knowledge and intent that they will rely upon this certification,
that:
(a) [To be certified by the Trustee] [I have reviewed the annual
report on Form 10-K for the fiscal year [___] (the "Annual Report"), and
all reports on Form 8-K containing statements to certificateholders filed
in respect of periods included in the year covered by that Annual Report
(collectively with the Annual Reports, the "Reports"), of the Trust;]
(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 3.13 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 in these reports
delivered by the special servicer, 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 3.13 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 3.14 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, 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;]
(i) [To be certified by the Master Servicer and Special Servicer] [I
have disclosed to [the Master Servicer's] [the Special Servicer's]
certified public accountants all significant deficiencies relating to the
compliance of [the Master Servicer] [the Special Servicer] with the
minimum servicing standards in accordance with a review conducted in
compliance with the Uniform Single Attestation Program for Mortgage
Bankers or similar procedure as set forth in the Pooling and Servicing
Agreement; and]
(j) [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 REGULATION S CERTIFICATE
Xxxxx Fargo Bank, X.X.
Xxxxx Fargo Center
Sixth and Marquette
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attn: Corporate (CMBS) Securities
Re: Transfer of Banc of America Commercial Mortgage Inc., Commercial Mortgage
Pass-Through Certificates, Series 2006-1, Class [ ]
Ladies and Gentlemen:
Reference is made to the Pooling and Servicing Agreement, dated as
of March 1, 2006 (the "Pooling and Servicing Agreement"), by and among Banc of
America Commercial Mortgage Inc., as depositor (the "Depositor"), Bank of
America, N.A., as Master Servicer (the "Master Servicer"), Midland Loan
Services, Inc., as Special Servicer (the "Special Servicer") and Xxxxx Fargo
Bank, N.A., as Trustee (the "Trustee"). Capitalized terms used but not defined
herein shall have the meanings ascribed to them in the Pooling and Servicing
Agreement.
This letter relates to US $[__________] aggregate Certificate
Principal Amount of Certificates (the "Certificates") which are held in the form
of the Domestic Global Certificate (CUSIP No. ) with the Depository in the name
of [insert name of transferor] (the "Transferor"). The Transferor has requested
a transfer of such beneficial interest in the Certificates for an interest in
the Regulation S Global Certificate (ISIN No. ).
In connection with such request, and in respect of such
Certificates, the Transferor does hereby certify that such transfer has been
effected in accordance with the transfer restrictions set forth in the Pooling
and Servicing Agreement and the Certificates and (i) with respect to transfers
made in accordance with Regulation S under the Securities Act of 1933, as
amended (the "Securities Act"), the Transferor does hereby certify that:
(a) the offer of the Certificates was not made to a person in the
United States,
[(b)__at the time the buy order was originated, the Transferee was
outside the United States or the Transferor and any person acting on its behalf
reasonably believed that the Transferee was outside the United States,]*
-----------------
* Insert one of these two provisions, which come from the definition of
"offshore transaction" in Regulation S.
[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: _________ __, __
EXHIBIT N
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
Re: Transfer of Banc of America Commercial Mortgage Inc., Commercial Mortgage
Pass-Through Certificates, Series 2006-1, Class [ ]
Reference is hereby made to the Pooling and Servicing Agreement,
dated as of March 1, 2006 (the "Pooling and Servicing Agreement"), by and among
Banc of America Commercial Mortgage Inc., as depositor (the "Depositor"), Bank
of America, N.A., as Master Servicer (the "Master Servicer"), Midland Loan
Services, Inc., as Special Servicer (the "Special Servicer") and Xxxxx Fargo
Bank, N.A., as Trustee (the "Trustee"). Capitalized terms used but not defined
herein shall have the meanings given to them in the Pooling and Servicing
Agreement.
This letter relates to US $[__________] aggregate Certificate
Principal Amount of Certificates (the "Certificates") which are held in the form
of the Domestic Global Certificate (CUSIP No. _____________) with the Depository
in the name of [insert name of transferor] (the "Transferor"). The Transferor
has requested a transfer of such beneficial interest for an interest in the
Regulation S Global Certificate (CUSIP No. ____________) to be held with
[Euroclear] [Clearstream]* (ISIN No. _____________) through the Depository.
In connection with such request and in respect of such Certificates,
the Transferor does hereby certify that such transfer has been effected in
accordance with the transfer restrictions set forth in the Pooling and Servicing
Agreement and pursuant to and in accordance with Regulation S under the
Securities Act of 1933, as amended (the "Securities Act"), and accordingly the
Transferor does hereby certify that:
(a) the offer of the Certificates was not made to a person in the
United States,
[(b) at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any persons acting on its behalf
reasonably believed that the transferee was outside the United States,]**
[2. the transaction was executed in, on or through the facilities of
a designated offshore securities market and neither the Transferor nor any
person acting on its behalf knows that the transaction was prearranged with a
buyer in the United States,]
(c) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or 904(b) of Regulation S, as applicable,
and
(d) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Servicer and the
Special Servicer.
[Insert Name of Transferor]
By:____________________________________
Name:
Title:
Dated: _____________, ___
------------------
** 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 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
Re: Transfer of Banc of America Commercial Mortgage Inc., Commercial
Mortgage Pass-Through Certificates, Series 2006-1, Class [ ]
Reference is hereby made to the Pooling and Servicing Agreement,
dated as of March 1, 2006 (the "Pooling and Servicing Agreement"), by and among
Banc of America Commercial Mortgage Inc., as depositor (the "Depositor"), Bank
of America, N.A., as Master Servicer (the "Master Servicer"), Midland Loan
Services, Inc., as Special Servicer (the "Special Servicer") and Xxxxx Fargo
Bank, N.A., as Trustee (the "Trustee"). Capitalized terms used but not defined
herein shall have the meanings given to them in the Pooling and Servicing
Agreement.
This letter relates to US $[__________] aggregate Certificate
Principal Amount of Certificates (the "Certificates") which are held in the form
of the Domestic Global Certificate (CUSIP No. _____) with the Depository in the
name of [insert name of transferor] (the "Transferor"). The Transferor has
requested a transfer of such beneficial interest in the Certificates for an
interest in the Regulation S Global Certificate (ISIN No. _____).
In connection with such request, and in respect of such
Certificates, the Transferor does hereby certify that such transfer has been
effected in accordance with the transfer restrictions set forth in the Pooling
and Servicing Agreement and, (i) with respect to transfers made in reliance on
Regulation S under the Securities Act of 1933, as amended (the "Securities
Act"), the Transferor does hereby certify that:
(a) the offer of the Certificates was not made to a person in the
United States,
[(b) at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any person acting on its behalf
reasonably believed that the transferee was outside the United States,]
(c) the transaction was executed in, on or through the facilities of
a designated offshore securities market and neither the Transferor nor any
person acting on its behalf knows that the transaction was prearranged
with a buyer in the United States,]*
(d) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or 904(b) of Regulation S, as applicable,
and
(e) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act;
or (ii) with respect to transfers made in reliance on Rule 144 under
the Securities Act, the Transferor does hereby certify that the Certificates
that are being transferred are not "restricted securities" as defined in Rule
144 under the Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Servicer and the
Special Servicer.
[Insert Name of Transferor]
By:____________________________________
Name:
Title:
Dated: ____ __, ____
--------------------
* Insert one of these two provisions, which come from the definition of
"offshore transaction" in Regulation S.
EXHIBIT P
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
Re: Transfer of Banc of America Commercial Mortgage Inc., Commercial
Mortgage Pass-Through Certificates, Series 2006-1, Class [ ]
Reference is hereby made to the Pooling and Servicing Agreement,
dated as of March 1, 2006 (the "Pooling and Servicing Agreement"), by and among
Banc of America Commercial Mortgage Inc., as depositor (the "Depositor"), Bank
of America, N.A., as Master Servicer (the "Master Servicer"), Midland Loan
Services, Inc., as Special Servicer (the "Special Servicer") and Xxxxx Fargo
Bank, N.A., as Trustee (the "Trustee"). Capitalized terms used but not defined
herein shall have the meanings given to them in the Pooling and Servicing
Agreement.
This letter relates to US $[__________] aggregate Certificate
Principal Amount of Certificates (the "Certificates") which are held in the form
of the Regulation S Global Certificate (CUSIP No. __________) with [Euroclear]
[Clearstream]* (ISIN No. __________) through the Depository in the name of
[insert name of transferor] (the "Transferor"). The Transferor has requested a
transfer of such beneficial interest in the Certificates for an interest in the
Domestic Global Certificate (CUSIP No. __________).
In connection with such request, and in respect of such
Certificates, the Transferor does hereby certify that such Certificates are
being transferred in accordance with (i) the transfer restrictions set forth in
the Pooling and Servicing Agreement and (ii) Rule 144A under the Securities Act
to a transferee that the Transferor reasonably believes is purchasing the
Certificates for its own account with respect to which the transferee exercises
sole investment discretion and the transferee and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A, in each case in
a transaction meeting the requirements of Rule 144A and in accordance with any
applicable securities laws of any state or other jurisdiction of the United
States.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Servicer, the
Special Servicer and Banc of America Securities LLC and Barclays Capital Inc.,
the Initial Purchasers of the offering of the Certificates.
[Insert Name of Transferor]
By:____________________________________
Name:
Title:
Dated: ____ __, ____
SCHEDULE I
BACM 06-1 MLS
NOTICE TO RECIPIENT
The asset-backed securities referred to in these materials, and the asset pools
backing them, are subject to modification or revision (including the possibility
that one or more classes of securities may be split, combined or eliminated at
any time prior to issuance or availability of a final prospectus) and are
offered on a "when, as and if issued" basis. You understand that, when you are
considering the purchase of these securities, a contract of sale will come into
being no sooner than the date on which the relevant class has been priced and we
have confirmed the allocation of securities to be made to you; any "indications
of interest" expressed by you, and any "soft circles" generated by us, will not
create binding contractual obligations for you or us.
Because the asset-backed securities are being offered on a "when, as and if
issued" basis, any such contract will terminate, by its terms, without any
further obligation or liability between us, if the securities themselves, or the
particular class to which the contract relates, are not issued. Because the
asset-backed securities are subject to modification or revision, any such
contract also is conditioned upon the understanding that no material change will
occur with respect to the relevant class of securities prior to the closing
date. If a material change does occur with respect to such class, our contract
will terminate, by its terms, without any further obligation or liability
between us (the "Automatic Termination"). If an Automatic Termination occurs, we
will provide you with revised offering materials reflecting the material change
and give you an opportunity to purchase such class. To indicate your interest in
purchasing the class, you must communicate to us your desire to do so within
such timeframe as may be designated in connection with your receipt of the
revised offering materials.
The information contained in these materials may be based on assumptions
regarding market conditions and other matters as reflected herein. Banc of
America Securities LLC (the "Underwriter") makes no representation regarding the
reasonableness of such assumptions or the likelihood that any such assumptions
will coincide with actual market conditions or events, and these materials
should not be relied upon for such purposes. The Underwriter and its affiliates,
officers, directors, partners and employees, including persons involved in the
preparation or issuance of these materials, may, from time to time, have long or
short positions in, and buy and sell, the securities mentioned herein or
derivatives thereof (including options). Information in these materials is
current as of the date appearing on the material only. Information in these
materials regarding any securities discussed herein supersedes all prior
information regarding such securities. These materials are not to be construed
as an offer to sell or the solicitation of any offer to buy any security in any
jurisdiction where such an offer or solicitation would be illegal.
The issuer has filed a registration statement (including a prospectus) with the
SEC for the offering to which this communication relates. Before you invest, you
should read the prospectus in that registration statement and other documents
the issuer has filed with the SEC for more complete information about the issuer
and this offering. You may get these documents for free by visiting XXXXX on the
SEC Web site at xxx.xxx.xxx. Alternatively, the issuer, any underwriter or any
dealer participating in the offering will arrange to send you the prospectus if
you request it by calling toll-free 1-800-294-1322 or you e-mail a request to
xx.xxxxxxxxxx_xxxxxxxxxxxx@xxxxxxxxxxxxxx.xxx. The securities may not be
suitable for all investors. Banc of America Securities LLC and its affiliates
may acquire, hold or sell positions in these securities, or in related
derivatives, and may have an investment or commercial banking relationship with
the issuer.
IRS CIRCULAR 230 NOTICE: THIS FREE WRITING PROSPECTUS IS NOT INTENDED OR WRITTEN
TO BE USED, AND CANNOT BE USED, FOR THE PURPOSE OF AVOIDING U.S. FEDERAL, STATE
OR LOCAL TAX PENALTIES. THIS FREE WRITING PROSPECTUS IS WRITTEN AND PROVIDED BY
THE UNDERWRITERS IN CONNECTION WITH THE PROMOTION OR MARKETING OF THE
TRANSACTIONS OR MATTERS ADDRESSED HEREIN. INVESTORS SHOULD SEEK ADVICE BASED ON
THEIR PARTICULAR CIRCUMSTANCES FROM AN INDEPENDENT TAX ADVISOR.
Sequence Loan Number Loan Seller Property Name
-------- ----------- --------------- ----------------------------------------------------------------
1 59414 Bank of America KinderCare Portfolio (12) (13)
2 59264 Bank of America Desert Passage
3 20050248 Barclays Waterfront at Port Xxxxxxx
4 59639 Bank of America Fairmont Sonoma Mission Inn & Spa
5 20051519 Barclays Torre Mayor
6 59431 Bank of America Medical Mutual Headquarters
7 20051227 Barclays Frandor Shopping Center
8 20051248 Barclays Metro Plaza at Jersey City
9 59551 Bank of America Plaza Antonio
10.1 59442 Bank of America Main Event - Austin,TX
10.2 00000 Xxxx xx Xxxxxxx Xxxx Xxxxx - Xxxxx, XX
10.3 59442 Bank of America Main Event - Conroe (Shenandoah), TX
10.4 00000 Xxxx xx Xxxxxxx Xxxx Xxxxx - Xxxxxxxxxx, XX
10.5 59442 Bank of America Main Event - Fort Worth, TX
10.6 59442 Bank of America Main Event - Grapevine,TX
10 59442 Bank of America Main Event Portfolio (Roll Up)
11 59156 Bank of America Jordache Distribution
12 20051383 Barclays Marriott Courtyard Grand Cayman
13 59355 Bank of America DEA Division Headquarters
14 20051381 Barclays Bass Creek Corporate Center
15 20051351 Barclays Beltway 8
Rollup Bass Creek Corporate Center and Beltway 8 (Crossed Loans)
16 20051464 Barclays Avalon Xxxx Xxxxxxxxxx
00 00000 Bank of America 00 Xxxxxxxxx Xxxxxx
18 59616 Bank of America Embassy Suites
19 59474 Bank of America Accor North American Headquarters
20 59617 Bank of America Camelot Apartments
21 59488 Bank of America Xxxxx Xxxxxxx Xxxxxxxxxx
00 00000 Xxxx xx Xxxxxxx Mitsuwa Marketplace
23 20051394 Barclays Montpelier II
24 59268 Bank of America Special Data Processing Building
25 59447 Bank of America Xxxxxxxxx Village
26 59271 Bank of America Shawnee Mission Medical Office Buildings
27 59484 Bank of America Golden Terrace West
28 59613 Bank of America Autodesk Civic Center
29 59452 Bank of America Hawthorne Place Apartments
30 59291 Bank of America Department of Homeland Security
31 15778 Xxxxxxx Xxxxxx Plaza
32 59509 Bank of America Xxxxxxx Xxxx at Bridge Mill
33.1 00000 Xxxx xx Xxxxxxx Xxxxx/Exchange Properties
33.2 59513 Bank of America Greenbriar/Greenwood Properties
33.3 00000 Xxxx xx Xxxxxxx Xxxx Properties
33 59513 Bank of America Southlake Flex Portfolio (Roll Up)
34 59480 Bank of America North Park Towers
35.1 00000 Xxxx xx Xxxxxxx Storage Plus Portfolio - East Xxxxxx
35.2 59379 Bank of America Storage Plus Portfolio - Xxxxxx Mid-Valley
35.3 59379 Bank of America Storage Plus Portfolio - Pocatello
35.4 00000 Xxxx xx Xxxxxxx Storage Plus Portfolio - Boise
35.5 00000 Xxxx xx Xxxxxxx Storage Plus Portfolio - North Xxxxxx
35 59379 Bank of America Storage Plus Portfolio (Roll Xx)
00 00000 Xxxxxxx Xxxxxxx Xxxxxxx Apartments
37 59385 Bank of America Pacoima Plaza
38.1 00000 Xxxx xx Xxxxxxx Xxxxxxxxx Xxxxxxx Self Storage
38.2 59401 Bank of America Rhino Self Storage III
38.3 59401 Bank of America Rhino Self Storage VIII
38.4 59401 Bank of America Rhino Self Storage VII
38.5 59401 Bank of America Rhino Self Storage
38 59401 Bank of America Xxxxxx and Xxxxxx Self Storage Portfolio (Roll Up)
39 20051279 Barclays Palermo Apartments
40 15170 Bridger Plazas of Broadview
41 59444 Bank of America Xxxx Eagle at Wildwood
42 59529 Bank of America 00000 Xxxxxxxxx Xxxxxxx
43 59197 Bank of America Country Club of Woodland Hills
44 59486 Bank of America East Bay Oaks
45 20050800 Barclays Raymour & Xxxxxxxx - Ocean Township
46 0000000 SunTrust Bank Hampton Inn - Springfield
47 59483 Bank of America Xxxxxxx Xxxxxxx
00 00000 Xxxxxxx Xxxxxxx
49 15954 Bridger Greystone at Inverness, Phase II
50 59417 Bank of America XxXxxx-Xxxx Companies
51 0000000 SunTrust Bank Xxxxxxx Xxxxx
52 59402 Bank of America Wabash Landing
53 0000000 SunTrust Bank Xxxxx Xxxx
00 00000 Xxxxxxx Xxxxx Xxxxx Apartments
55 16955 Bridger The Shoppes at Coldwater
56 0000000 SunTrust Bank Hampton Inn- Xxxx Port
57 59433 Bank of America BJ's Wholesale Club - Miami, FL
58 59449 Bank of America Xxxxxxxxx Xxx
00 00000 Xxxx xx Xxxxxxx University Springs Apartments
60 59418 Bank of America Corona Office & Self Storage
61 20050864 Barclays Palisades Trailer Bowl MHP
62 59569 Bank of America Hampton Inn & Suites
63 0000000 SunTrust Bank FDA Xxxxxxxx
00 00000 Xxxx xx Xxxxxxx Xxxx Xxxxxxx
65 20051405 Barclays 24 Hour Fitness
66 59605 Bank of America Verizon Call Center
00 00000 Bank of America Assured Self Storage
68 0000000 SunTrust Bank Comfort Inn - Springfield
69 59487 Bank of America Eldorado Village
70.1 59615 Bank of America Raleigh North Apartments
70.2 59615 Bank of America Milbank Court Apartments
70 59615 Bank of America Raleigh North Apartments and Milbank Court Apartments (Roll Up)
71 59435 Bank of America Peregrine Pharmaceuticals
72 59476 Bank of America Timberhills Shopping Center
73 20051361 Barclays Pontrail Apartments
74 59595 Bank of America Crossroads at Santa Xxxxx
75 59583 Bank of America Best Buy - Erie, PA
76.1 59400 Bank of America U-Lock Hickory
76.2 59400 Bank of America U-Lock Morganton
76.3 59400 Bank of America U-Lock Concord
76 59400 Bank of America U-Lock Portfolio (Roll Up)
77 59504 Bank of America Xxxxxxxx Xxxxxxxx Xxxxxxxxxx
00 00000 Xxxxxxx Xxxx Plaza Apartments (WI)
80 59550 Bank of America Dick's Sporting Goods - Keene, NH
81 59491 Bank of America StorQuest - Camarillo
82 16939 Bridger Bent Tree Apartments
83 20051395 Barclays Holiday Inn Express - Xxxxx Park
84 16580 Bridger Holiday Inn Express-NW Portland
85 16184 Xxxxxxx Xxxxxxxx Xxxxxx Xxxxxxxx
00 00000 Xxxx xx Xxxxxxx Whitewater Trade Center
87 59489 Bank of America Xxxxxx Xxxxxxxx Xxxxxx - Xxxxx Xxxxxx, XX
88 59543 Bank of America Shoppes of Xxxxxxx
89 59446 Bank of America The Xxxxxxx MHC
90 59475 Bank of America Rancho Springs Medical Center
91 59597 Bank of America Best Buy - Ft. Lauderdale
92 59443 Bank of America Market Square Center
93 59151 Bank of America Hampton Inn - Niagara Falls
94 59545 Bank of America Crossroads Storage
95 59318 Bank of America Phoenix Airport Industrial
96 20051476 Barclays Xxxxxxx Xxxxxx Xxxxxxxx
00 00000 Xxxxxxx Xxxxx Xxxxx
98 16882 Bridger XxxxxXxxx Xxxxxxx Xxxx
00 00000 Bank of America 0000 Xxxxxxxxx Xxxxxxxxx
100 0000000 SunTrust Bank Junction Business Park
101 59321 Bank of America Xxxxxxxxx Xxxxxxxx Xxxxxx
000 00000 Xxxx of America 0000 Xxxxxx Xxxx
103 59607 Bank of America Quest Northgate
104 20051274 Barclays Suburban Lodge Extended Stay
105 15687 Bridger Prosperity Bank Xxxxxxxx
000 00000 Xxxxxxx XXX Xxxxx
107 59510 Bank of America Xxxxxx Crossing
108 15095 Bridger Embassy Tower
109 20051253 Barclays Comfort Inn-Hyannis
110 20050944 Barclays The Carrier Building
111 20051398 Barclays Fairfield Inn-Flagstaff
112 59075 Bank of America Best Western Franklin Park Suites
113 15756 Xxxxxxx Xxxxxxx Forest
114 59582 Bank of America Best Buy - Northridge, CA
115 20051463 Barclays Xxxxxxx Inn Cincinnati - Blue Ash
116.1 16154 Bridger Eagles Portfolio-221 Xxxx Xxxxx Road
116.2 16154 Bridger Eagles Portfolio-30 Xxxxxx Drive
116 16154 Bridger Eagles Portfolio (Roll Up)
117 20050228 Barclays Dominion Marketplace
118.1 59399 Bank of America Space Saver Self Storage Facility
118.2 59399 Bank of America Pack Rat Self Storage Facility
118 59399 Bank of America Space Saver Self Storage and Pack Rat Self Storage (Roll Up)
119 59457 Bank of America Xxxxx Deer Park
120 59608 Bank of America Associated Xxxx - Xxxxxxxxx Xxxxxxxx
000 00000 Xxxxxxx XXX XX SS
122 14278 Bridger Platinum Storage (Phelan)
123 59214 Bank of America Hermitage Apartments
124 20051422 Barclays Allsize Ministorage
125 59584 Bank of America PepsiCo Distribution Center
126 15417 Bridger Guardian Storage Centers (StorAmerica)
127 14388 Bridger BrookHollow
128 20061254 Barclays Linens N Things
129 16941 Bridger Highland House Apartments-OH
130 16247 Bridger Painters Mill Professional Center
131 15552 Bridger Meridian Retail Center
132 0000000 SunTrust Bank Maryland Office Interiors
133 20051345 Barclays Holiday Inn Express - Germantown WI
134 58947 Bank of America Stone Creek Apartments
135 59578 Bank of America Sunset Self Storage
136 59215 Bank of America Ridgeside Apartments
137 00000 Xxxxxxx Xxxxxxx III
138 0000000 SunTrust Bank Xxxxx Co. - Roseville
139 59273 Bank of America University Square Apartments
140 20051347 Barclays Xxxxxxxxx Xxxxxxxxxx
000 00000 Xxxxxxx Xxxxxxxx Apartments
142 14485 Xxxxxxx Xxxxxxxx Apartments
143 16541 Bridger Ridge Apartments
144 0000000 SunTrust Bank Sleep Inn - Xxxx Port
145 14493 Bridger Strawberry Xxxxxxx Apartments
146 15328 Xxxxxxx Xxxxxxx Xxxxxxx
000 00000 Xxxxxxx Xxxxxxx Xxxx Apartments
148 20051360 Xxxxxxxx Xxxxx Xxxxxx Xxxxx
000 00000 Bridger Holiday Inn Express Burlington
150 15782 Bridger National Storage Centers
151 16320 Bridger Jacob's Landing Apartments
152 59527 Bank of America Bentonville Butcher Shop Building
153 0000000 SunTrust Bank Heritage Place II Apartments
154 59577 Bank of America 0000 X. Xxxxxxxxxx
155 59441 Bank of America Xxxxxxx Crossing Verizon Pad
156 59574 Bank of America Xxxxxx Road Business Park
157 59477 Bank of America Glendale Workshops
158 15375 Bridger Las Violetas Apartments
159 15475 Xxxxxxx Xxxxxxxx Xxxxxxxx
000 00000 Xxxxxxx American Self Storage
161 16259 Bridger Xxxx Xxxx Xxxxxxxxxx
000 00000 Xxxxxxx Xxxxxxx House
163 16335 Bridger Saddle Ridge Duplexes
164 59530 Bank of America South West Self Storage
165 16394 Bridger Bellefontaine Retail
166 13660 Xxxxxxx Xxxxxxxxx Lakes Retail Center
167 15610 Bridger Northpark Drive-Ridgeland
168 59590 Bank of America OfficeMax - Phoenix, AZ
169 14719 Bridger Swiss Highlands Shopping Center
170 59327 Bank of America 0000 Xxxxxxxx Xxxxxx
171 16041 Bridger Royal Sentry Apartments
172 59470 Bank of America Xxxxxx Xxxxx
000 00000 Xxxxxxx Xxxxxx Square Retail
174 16723 Bridger Storage Depot - Pharr
175 0000000 SunTrust Bank Xxxxx Co. - Kennesaw
176 12142 Bridger El Camino Self Storage
177 17211 Bridger National Storage Center-Portland
178 16331 Bridger Regency Xxxxxx Xxxxxxxx Xxxxxx
000 00000 Xxxxxxx Xxxxxxxx-Xxxxxxx Depot
180 16603 Bridger Lake Meridian Crossing
181 59528 Bank of America 0000 Xxxx Xxxxxxxxx Xxxxx
182 15660 Bridger Kings Manor
183 16713 Bridger Storage Depot - Burleson
184 59576 Bank of America 0000 Xxxxxxxx Xxxx
185 16532 Bridger Regency Square
186 59549 Bank of America Staples - Atascadero
187 16721 Bridger Fossil Creek-Storage Depot
188 15458 Bridger Canal Building
189 59269 Bank of America Arbors Apartments
190 16727 Bridger Storage Depot - Morningside
191 15357 Xxxxxxx Xxxxxxx Xxxxxxx
000 00000 Xxxxxxx Xxxxxxx Xxxxxxx
193 15584 Bridger Southpark Retail
Totals/Weighted Average
Sequence Street Address
-------- -------------------------------------------------------------------------------------------------------------------------
1 Various
2 3663 Las Vegas Xxxxxxxxx Xxxxx
0 Xxxxxxxxxxx Xxxxxx and South Main Street
4 000 Xxxxx Xxxxxxxxx
5 505 Paseo de la Reforma
6 0000 Xxxx 0xx Xxxxxx
7 000 Xxxxxxx Xxxxxx
8 400 Xxxx Xxxxx Xxxxx Boulevard
9 22351-22461 Antonio Parkway
10.1 00000 Xxxxx XX Xxxxxxx 000
10.2 3941 North Central Expressway
10.3 19441 Interstate 45 South
10.4 0000 Xxxxx Xxxxxxxx Xxxxxxx
10.5 0000 Xxxxxxxx Xxxxxxxxx
10.6 000 Xxxx Xxxxx Xxxxxxx 000
10 Various
11 000 Xxxxx Xxxxxx
12 000 Xxxx Xxx Xxxx
13 000 Xxxxx 00xx Xxxxxx
14 0000 00xx Xxxxxx Xxxxx
15 11000 Corporate Centre Drive
Various
16 0000 Xxxxxxxxx Xxxxxxx
17 00 Xxxxxxxxx Xxxxxx
00 0000 Xxxxxxxx
19 0000 Xxxxxxxxxxxxx Xxxxxxx
20 0000 Xxxxx Xxxxxx X
21 0000 Xxxxxxx Xxxxxx
22 00000 Xxxxx Xxxxxxx Xxxxxx
00 0000-0000 Xxxxxxxxxx Xxxx
00 16120 XX Xxxxxxx 00 Xxxxx
00 0000-0000 Xxxxxxxxx Xxxxxxx
00 0000-0000 West 74th Street, 0000 Xxxx 00xx Xxxxxx & 0000 Xxxx Xxxxxxxx Xxxx
27 000 Xxxx Xxxxxx
28 3900 & 0000 Xxxxx Xxxxxx Xxxxx
29 10208 Hawthorne Xxxxx Xxxxx
00 0000 Xxxxxx X Xxxx
00 0000-0000 Xxxxxxxxx Xxxxxxxx Xxxx
00 0000 Xxxxxxx Xxxx Circle
33.1 000 Xxxxxxxx Xxxxxx; 0000 Xxxxxx Xxxx; 2835,2845,2855,2860,2865,2870,2875 Exchange Boulevard; 525, 535 & 000 Xxxxx Xxxxx
Xxxxx
33.2 0000 Xxxxxxxxxx Xxxxx; 2050,2100 Greenwood Drive
33.3 1601,1603,1605,1607,1609,1611 Xxxx Court
33 Various
34 00000 Xxxxx Xxxx Xxxxx
35.1 820 East 5400 South
35.2 0000 Xxxxx 0000 Xxxx
35.3 0000 Xxxxxx Xxxx
35.4 0000 Xxxx Xxxxxxx Xxxx
35.5 0000 Xxxxx 000 Xxxx
35 Various
36 400 Legends Xxxxxxx Xxxxx
00 00000 Xxx Xxxx Xxxxxxxxx
38.1 0000 Xxxx Xxxxxxxxx Xxxxxxx
38.2 0000 Xxxx Xxxxxx
38.3 0000 Xxx Xxxxxx Xxxxxxxxx
38.4 0000 Xxxxx Xxxxxx Xxxxxxxxx
38.5 0000 Xxx Xxxxxx Xxxxxxxxx
38 Various
39 0000 Xxxx Xxxxxx Xxxxxx
40 101, 103, 203, 303 and 000 Xxxx Xxxxxxxx Xxxx; 500 and 000 Xxxx Xxxxxxxx Xxxx; 0000 Xxxx Xxxxxx Xxxxx
41 5877 Xxxx Road
42 00000 Xxxxxxxxx Xxxxxxx
43 0000 Xxxxx 00xx Xxxx Xxxxxx
44 000 Xxxxxxx Xxxx
45 1606 Highway 35
46 6550 Loisdale Court
47 0000 Xxxxxx Xxxx
48 000 00xx Xxxxxx Xxxxx
49 0000 Xxx Xxxx Xxxx
50 7500 Xxxxxxxxxx Xxxx
00 0000 Xxxxxx Xxxxx Xxxx
52 000 Xxxxx Xxxxxx
53 0000 Xxxx Xxxxx Xxxx
54 0000 Xxxxxxxxx Xxxxx
55 0000 Xxxxxxxxx Xxxx
56 00 Xxxxxxxxxx Xxxxxxxxx
57 10425 Xxxxxx Xxxx
00 246 Xxxxxx Xxxxxxx Xxxxxxx
00 000 Xxxx Xxxxxx
00 0000 Xxxxxx Xxxx
61 16321 Pacific Coast Highway
62 1750 North Xxxxxxx 000
00 00 Xxxxxx Xxxxxx
64 2580 & 0000 Xxxx Xxxx Xxxxxxxxx
65 00000 Xxxxx Xxxxxxxxxx Xxxx
66 000 Xxxxxx Xxxxxx
67 000 Xxxxxxx Xxxxxx
68 0000 Xxxxxxxx Xxxxx
69 0000 Xxxx Xxx Xxxxx
70.1 0000 Xxxxxxx Xxxxxxxxx
70.2 0000 Xxxxxxxx Xxxxxx
70 Various
71 14272-14282 Xxxxxxxx Xxxxxx
00 0000-0000 Xxxx Way
73 000 Xxxxxxxx Xxxxx
74 2160-2214 South Xxxxxxx Xxxx
00 0000 Xxxxx Xxxxxx
76.1 0000 00xx Xxxxxx Xxxxxxxxx
76.2 0000 Xxxxxx Xxxx
76.3 220 Xxxxxxxx School Road
76 Various
77 0000 Xxxxxxxxx Xxxxx
78 0000 Xxxxx Xxxx Xxxxx Xxxxx
80 00 Xxx Xxxxx Xxxx
81 000 Xxxxx Xxxxx Xxxx
82 0000-0000 Xxxx Xxxxxxxx Xxxx
83 3600 Enterprise Drive
84 0000 XX Xxxxxx Xxxxxx
85 0000 Xxxxx Xxxxxxxx Xxxxxx Xxxxxxxxx
86 2100 North Park Xxxx
00 0000 Xxxxxx Xxxx
88 10834-10876 SW 000xx Xxxxxx
00 00000 Xxxxxx Xxxx Drive
90 25485 Medical Center Drive
91 2829 North Federal Xxxxxxx
00 000 Xxxx Xxxxxx
93 000 Xxxxxxx Xxxxxxxxx
94 000 Xxxxxxxxx Xxxxxxx
95 0000 Xxxx Xxxxxxxx Xxxx
96 00000 Xxxxx 00xx Xxxxx
97 500 Snows Xxxx Xxxxxx
00 0000 Xxxxxxx Xxxx
99 0000 Xxxxxxxxx Xxxxxxxxx
100 0000 Xxxxxxxx Xxxxx
101 0000 Xxxxxxx Xxxx
102 0000-00 Xxxxxx Xxxx
103 0000 Xxxxxxxxx Xxxxxxxxx
104 0000 Xxxxx Xxxxxxxxx
105 000 Xxxxx Xxxxx Xxxxxx
106 1101 Xxxx Xxxxx
000 0000 Xxxxxxxxxxx Xxxxxxxxx
108 0000 Xxxxxxxxx Xxxxxx
109 0000 Xxxxxxxxx Xxxx
110 0000 Xxxxxxxxxxx Xxxxxxx
111 0000 Xxxxx Xxxxxx Xxxx
112 0000 Xxxxxxx Xxxxxxx
113 0000 Xxxxxxx Xxxx
114 19929 Xxxxxxx Xxxxxx
000 0000 Xxxxxxxx-Xxxxxxx Road
116.1 000 Xxxx Xxxxx Xxxx
116.2 00 Xxxxxx Xxxxx / 000 Xxxx Xxxxxx
116 Various
117 000-000 Xxxxx Xxxxxx Xxxxxxxxx
118.1 0000 Xxx Xxxxxxxx Xxxx
118.2 0000 Xxxxxxxxxxxxx Xxxxxxx
118 Various
119 9115 & 9155 Xxxxx Xxxx Xxxx
000 0000 Xxxxx Xxxxx Xxxx
121 3216 Mid Xxxx Xxxx
000 0000 Xxxxx Xxxxx Xxxx
123 000 Xxx Xxxxxxx Xxxxxxxxx
124 00000 Xxxxxxxx Xxxxx
125 000 Xxxxxxx Xxxxxxx
126 0000 Xxxxx 00xx Xxxxxx
127 000 Xxxx Xxxxxxxxxxx Xxxx
128 4809 Xxxx Xxxx Xxxxx
000 00000-00000 Xxxx Xxxxxx
130 110 & 000 Xxxxxxxx Xxxx Xxxx
131 00000 Xxxxxxxx Xxxxxx East
132 0000 Xxxx Xxxxxxxxx Xxxxx
133 West 177 North 0000 Xxxxxxxxxx Xxxx
134 4541 N. E. Xxxxxxxxx Drive
135 0000 Xxxx Xxxxxx Xxxx
136 0000 Xxxxxx Xxxx
137 000 Xxxxxxxxx Xxxxxxx
138 000 Xxxxx Xxxxxxx Xxxxxx
139 0000 Xxxx Xxxxxx Xxxxxx
140 0000 Xxxxxx Xxxxxx
141 0000 Xxxxxxxx Xxxxx
142 0000 Xxxxxxxx Xxxxxx
143 5725 and 0000 Xxxxxxx Xxxx
144 0000 Xxxxxx Xxxx Xxxxxx
000 000-000 Strawberry Xxxxxxx / 000 X Xxxxxx
000 0000 Xxxxx Xxxxxxx Xxxxxx
147 000 Xxxxxxx Xxxx Xxxxx
148 0000 Xxxx Xxxxx Xxxxxx
149 0000 Xxxxxxxxx Xxxx
150 0000 X. Xxxxxxx Xxxxxx
151 940 and 000 Xxx Xxxxxxxx Xxxxx Xxxx, 501-548 Sunninghill Court, and 000-000 Xxxx Xxxx Xxxxx
000 0000 Xxxxx Xxxxxx Xxxxxxxxx
153 000 Xxxxxxxxxx Xxxxxx
154 8131 West Xxxxxxxxxx Xxxxxxxxx
000 0000 Xxxxx Xxxxx Xxxxxxx
156 0000 Xxxxxxxxx Xxxxxx Xxxx
157 0000 Xxxx Xxxxxxxx Xxxxxx
158 0000 X Xxxxx Xxxx
159 0000 Xxxx XxXxxx Xxxxxx
160 0000 Xxxx Xxxx Xxxxxx
161 0000 Xxxx Xxxx Xxxxxx
162 0000 XX 000xx Xxxxxx
163 2-20 and 00-00 Xxxxxx Xxxxx Xxxxx
164 0000 Xxxxxxxxx 00xx Xxxxxx
000 0000-0000 Xxxxx Xxxx Xxxxxx
000 0000 Xxxxx Xxxxxxxx Xxxxx 47
167 1025 Xxxxxxxxx Xxxxx
000 00000 Xxxxx 0xx Xxxxxx
169 3007 North Belt Xxxxxxx
000 0000 Xxxxxxxx Xxxxxx
171 2838 - 0000 Xxxxxxxx Xxxxxx
172 7510, 7528, 7562, 0000 Xxxxxxx Xxxxxx
000 0 Xxxx Xxxx Xxxx Xxxx
174 000 X. Xxxxxxxx Xxxxxx
175 000 Xxxxxx Xxxxxxx Xxxxxxx
176 000 X. Xx Xxxxxx Xxxx, Xxxxx X
177 8436 NE Xxxx Xxxxx
000 0000 Xxxxxxxx Xxxx
179 000 X. Xxxxxxx Xxxx
180 00000 XX Xxxx Xxxxxxx Xxxx
181 5485 Reno Xxxxxxxxx Xxxxx
000 000 Xxxx Xxxxx
183 000 Xxxxxx Xxxxx Xxxxxxx
184 0000 Xxxx Xxxxxxxx Xxxx
185 500 East Xxxxxxx Xxxxxxxxx
000 000 Xx Xxxxxx Xxxx
187 0000 X. Xxxxxxxxx Xxxxx
188 0000 00xx Xxxxxx Xxxx
189 0000 Xxxxx Xxx Xxxxxx Xxxxxxxxx
190 000 Xxxxxxxxxxx Xxxx
191 11840 Xxxxxxx Xxxxxxx Xxxxx
000 0000 Xxxxxxxxxx Xxxx
193 0000 Xxxx Xxx Xxxxx Xxxxxxxxx
Xxxxxxxx Xxxx Xxxxx (1) Zip Code Mortgage Rate (2) Amortization Basis Original Balance
-------- ---------------------- -------------- ------------- ----------------- ------------------ ----------------
1 Various Various Various 5.236% Actual/360 $150,000,000
2 Xxx Xxxxx XX 00000 5.464% Actual/360 $131,883,334
3 Xxxx Xxxxxxx XX 00000 5.463% Actual/360 $110,000,000
4 Xxxxxx XX 00000 5.400% Actual/360 $55,000,000
0 Xxxxxx Xxxx Xxxxxx 7.546% Actual/360 $55,000,000
6 Xxxxxxxxx XX 00000 5.650% Actual/360 $52,715,219
7 Xxxxxxx XX 00000 5.460% Actual/360 $39,500,000
8 Xxxxxx Xxxx XX 00000 5.730% Actual/360 $39,000,000
0 Xxxxxx Xxxxx Xxxxxxxxx XX 00000 6.083% Actual/360 $39,000,000
10.1 Xxxxxx XX 00000 $7,439,224
10.2 Xxxxx XX 00000 $6,191,309
10.3 Xxxxxx XX 00000 $5,591,483
10.4 Xxxxxxxxxx XX 00000 $5,515,643
10.5 Xxxx Xxxxx XX 00000 $5,515,643
10.6 Xxxxxxxxx XX 00000 $5,446,698
10 Various TX Various 5.618% Actual/360 $35,700,000
00 Xxxxx Xxxxxxxxxx XX 00000 5.526% Actual/360 $34,400,000
00 Xxxxx Xxxxxx Xxxxxx Xxxxxxx 6.450% Actual/360 $30,000,000
00 Xx. Xxxxx XX 00000 5.733% Actual/360 $27,000,000
14 Xxxxxxxx XX 00000 5.660% Actual/360 $13,600,000
15 Xxxxxxx XX 00000 5.710% Actual/360 $11,795,000
Various Various Various 5.683% Actual/360 $25,395,000
16 Xxxxx XX 00000 5.490% Actual/360 $24,100,000
17 Xxxxxxx XX 00000 5.897% Actual/360 $23,200,000
18 Xxxxxxxxx XX 00000 5.886% Actual/360 $21,100,000
19 Xxxxxxxxxx XX 00000 5.274% Actual/360 $20,800,000
20 Xxxx XX 00000 5.493% Actual/360 $20,800,000
00 Xxxx Xxxxxxx XX 00000 5.589% Actual/360 $18,900,000
22 Xxxxxxxx XX 00000 5.680% Actual/360 $18,430,127
23 Xxxxxx XX 00000 5.740% Actual/360 $18,113,000
24 Xxxxxxxxxx XX 00000 5.433% Actual/360 $17,850,000
25 Xxxxxxxxxxx XX 00000 5.420% Actual/360 $17,700,000
00 Xxxxxxxx Xxxx XX 00000 5.485% Actual/360 $17,200,000
27 Xxxxxx XX 00000 5.317% Actual/360 $16,800,000
28 Xxx Xxxxxx XX 00000 5.585% Actual/360 $16,500,000
29 Xxxxxxxxx XX 00000 5.295% Actual/360 $16,200,000
00 Xxxxx XX 00000 5.583% Actual/360 $16,000,000
31 Xxxxxxx XX 00000 5.514% Actual/360 $16,000,000
32 Xxxxxx XX 00000 5.530% Actual/360 $15,750,000
33.1 Xxxxxxxxx XX 00000 $10,255,109
33.2 Xxxxxxxxx XX 00000 $2,713,524
33.3 Xxxxxxxxx XX 00000 $2,431,367
33 Xxxxxxxxx XX 00000 5.665% Actual/360 $15,400,000
00 Xxxxxxxxxx XX 00000 5.362% Actual/360 $15,000,000
35.1 Xxxxxx XX 00000 $4,744,000
35.2 Xxxxxx XX 00000 $4,088,000
35.3 Xxxxxxxxx XX 00000 $2,160,000
35.4 Xxxxx XX 00000 $2,064,000
35.5 Xxxxxx XX 00000 $1,072,000
35 Various Various Various 5.245% Actual/360 $14,128,000
36 Xxxxxx XX 00000 5.804% Actual/360 $14,000,000
37 Xxxxxxx XX 00000 5.532% Actual/360 $13,000,000
38.1 Xxxxxx XX 00000 $3,178,261
38.2 Xx Xxxx XX 00000 $3,141,304
38.3 Xx Xxxx XX 00000 $2,513,043
38.4 Xx Xxxx XX 00000 $2,254,348
38.5 Xx Xxxx XX 00000 $1,663,043
38 Various TX Various 5.180% Actual/360 $12,750,000
39 Xxx Xxxxx XX 00000 5.710% Actual/360 $12,550,000
00 Xxxxxxxxx Xxxxxxx XX 00000 5.310% Actual/360 $12,240,000
41 Xxxxxxxxx XX 00000 5.592% Actual/360 $12,200,000
42 Xxxxxxxxx XX 00000 5.453% Actual/360 $12,000,000
43 Xxxxx XX 00000 5.925% Actual/360 $11,981,894
44 Xxxxx XX 00000 5.374% Actual/360 $11,900,000
45 Xxxxxxxx XX 00000 5.890% Actual/360 $11,800,000
46 Xxxxxxxxxxx XX 00000 6.010% Actual/360 $11,750,000
47 Xxxxxxxx Xxxxxxx XX 00000 5.317% Actual/360 $11,600,000
00 Xx. Xxxxxxxxxx XX 00000 5.739% Actual/360 $11,600,000
49 Xxxxxxxx XX 00000 5.293% Actual/360 $11,600,000
50 Xxxxxxx XX 00000 5.402% Actual/360 $10,875,000
51 Xxxxxxxxx XX 00000 5.640% Actual/360 $10,800,000
00 Xxxx Xxxxxxxxx XX 00000 5.769% Actual/360 $10,700,000
53 Xxxxxxxx XX 00000 6.090% Actual/360 $10,500,000
54 Xxxxx XX 00000 5.637% Actual/360 $10,400,000
00 Xxxx Xxxxx XX 00000 5.580% Actual/360 $10,025,000
56 Xxxxxxxxxxxx XX 00000 5.880% Actual/360 $10,000,000
00 Xxxxxx Xxxxx XX 00000 5.680% Actual/360 $9,967,787
00 Xxxxxxxxx XX 00000 5.769% Actual/360 $10,000,000
59 Xxx Xxxxxx XX 00000 5.545% Actual/360 $9,900,000
60 Xxxxxx XX 00000 5.304% Actual/360 $9,700,000
00 Xxxxxxx Xxxxxxxxx XX 00000 5.470% Actual/360 $9,450,000
62 Xxxxxxxxx XX 00000 5.770% Actual/360 $9,200,000
63 Xxxxxxx XX 00000 5.270% Actual/360 $9,000,000
64 Xxxxxxxxxx XX 00000 5.272% Actual/360 $8,800,000
65 Xxxxxxxxxx XX 00000 5.650% Actual/360 $8,700,000
66 Xxxxxxxxx XX 00000 5.900% Actual/360 $8,500,000
00 Xxxxxxxxx Xxxxxxx XX 00000 5.587% Actual/360 $8,300,000
68 Xxxxxxxxxxx XX 00000 6.010% Actual/360 $8,250,000
69 Xxxxx XX 00000 5.374% Actual/360 $8,190,000
70.1 Xxxxxxx XX 00000 $5,025,652
70.2 Xxxxxxx XX 00000 $2,648,132
70 Xxxxxxx XX 00000 5.932% Actual/360 $7,673,784
71 Xxxxxx XX 00000 5.530% Actual/360 $7,576,877
72 Xxxxxx XX 00000 5.213% Actual/360 $7,400,000
00 Xxxxx Xxxx XX 00000 5.640% Actual/360 $7,150,000
74 Xxxxx Xxxxx XX 00000 5.658% Actual/360 $7,150,000
75 Xxxx XX 00000 5.721% Actual/360 $7,125,000
76.1 Xxxxxxx XX 00000 $2,559,543
76.2 Xxxxxxxxx XX 00000 $2,340,153
76.3 Xxxxxxx XX 00000 $2,193,894
76 Various NC Various 5.180% Actual/360 $7,093,590
77 Xxxxxxxxx XX 00000 5.624% Actual/360 $7,090,000
00 Xxxxx Xxxx XX 00000 5.221% Actual/360 $7,100,000
00 Xxxxx XX 00000 5.850% Actual/360 $7,040,000
81 Xxxxxxxxx XX 00000 5.353% Actual/360 $7,000,000
00 Xxxxxxxxx Xxxxxxx XX 00000 5.719% Actual/360 $7,000,000
00 Xxxxx Xxxx XX 00000 6.250% Actual/360 $7,000,000
84 Xxxxxxxx XX 00000 6.032% Actual/360 $6,445,000
85 Xxxxx Xxxxx XX 00000 5.780% Actual/360 $6,370,000
86 Xxxxxxxxxxxx XX 00000 5.494% Actual/360 $6,412,500
00 Xxxxx Xxxxxx XX 00000 5.877% Actual/360 $6,209,239
88 Xxxxx XX 00000 5.660% Actual/360 $6,093,939
89 Xxxxxxxxxxxxxx XX 00000 5.595% Actual/360 $6,000,000
90 Xxxxxxxx XX 00000 5.412% Actual/360 $6,000,000
91 Xxxx Xxxxxxxxxx XX 00000 5.340% Actual/360 $6,000,000
92 Xxxxxxxxxxxx XX 00000 5.454% Actual/360 $5,920,000
00 Xxxxxxx Xxxxx XX 00000 5.948% Actual/360 $5,880,000
94 Xxxxx Xxxxx XX 00000 5.490% Actual/360 $5,850,000
95 Xxxxxxx XX 00000 5.536% Actual/360 $5,750,000
96 Xxxxxxx XX 00000 6.010% Actual/360 $5,700,000
97 Xxxxxxxxxx XX 00000 5.114% Actual/360 $5,700,000
98 Xxxxx Xxxxx XX 00000 5.904% Actual/360 $5,700,000
99 Xxxxxxx XX 00000 5.662% Actual/360 $5,680,000
000 Xxxxxxxxx Xxxxxxxx XX 00000 5.870% Actual/360 $5,600,000
000 Xxxxxx Xxxxxxx XX 00000 5.661% Actual/360 $5,600,000
000 Xxxxx XX 00000 5.150% Actual/360 $5,500,000
000 Xxxxxxxxxx XX 00000 5.798% Actual/360 $5,500,000
104 Xxxxxxx XX 00000 5.890% Actual/360 $5,450,000
000 Xxxxxx Xxxxxxx XX 00000 5.664% Actual/360 $5,425,000
000 Xxxxxxxxxx XX 00000 5.868% Actual/360 $5,300,000
000 Xxxx Xxxxx XX 00000 5.686% Actual/360 $5,225,000
000 Xxxxx XX 00000 5.819% Actual/360 $5,100,000
000 Xxxxxxx XX 00000 5.830% Actual/360 $5,100,000
110 Xxxxxxx XX 00000 5.555% Actual/360 $5,000,000
000 Xxxxxxxxx XX 00000 5.850% Actual/360 $5,000,000
112 Xxxxxxxx XX 00000 5.805% Actual/360 $5,000,000
113 Xxxxxxxxxx XX 00000 5.896% Actual/360 $4,970,000
000 Xxxxxx Xxxxx XX 00000 5.972% Actual/360 $4,750,000
000 Xxxx Xxx XX 00000 5.750% Actual/360 $4,750,000
116.1 Xxxxx XX 00000 $2,996,540
116.2 Dover / Xxxxxxxxxxx XX 00000 / 03878 $1,703,460
116 Various NH Various 5.919% Actual/360 $4,700,000
000 Xxxxxxxxxx XX 00000 5.900% Actual/360 $4,700,000
118.1 Xxxxxxxxxxxxx XX 00000 $2,553,496
118.2 Xxxxxxxxxxxxx XX 00000 $2,127,914
118 Xxxxxxxxxxxxx XX 00000 5.180% Actual/360 $4,681,410
000 Xxx Xxxxx XX 00000 5.358% Actual/360 $4,650,000
000 Xxxxx Xxx XX 00000 5.565% Actual/360 $4,517,860
000 Xxxxxxxxxxxx XX 00000 5.415% Actual/360 $4,500,000
000 Xxxxxx XX 00000 5.318% Actual/360 $4,400,000
000 Xxxxxxx XX 00000 4.923% Actual/360 $4,100,000
000 Xxxxxxx XX 00000 5.670% Actual/360 $4,080,000
000 Xxxxxxxxx XX 00000 5.430% Actual/360 $4,050,000
126 Xxxxxxx XX 00000 5.579% Actual/360 $4,040,000
000 XxXxxx XX 00000 5.405% Actual/360 $3,913,000
000 Xxxx XX 00000 5.750% Actual/360 $3,810,000
000 Xxxxxxxx XX 00000 5.719% Actual/360 $3,650,000
000 Xxxxxx Xxxxx XX 00000 5.714% Actual/360 $3,600,000
000 Xxxxxxxx XX 00000 5.530% Actual/360 $3,575,000
000 Xxxxxxx Xxxx XX 00000 5.700% Actual/360 $3,600,000
000 Xxxxxxxxxx XX 00000 5.965% Actual/360 $3,581,000
000 Xxxxxxxxxxx XX 00000 5.626% Actual/360 $3,560,000
000 Xxx Xxxxx XX 00000 5.837% Actual/360 $3,520,000
000 Xxxxxx XX 00000 4.923% Actual/360 $3,500,000
000 Xxxxxxxx Xxxxx XX 00000 5.680% Actual/360 $3,493,750
000 Xxxxxxxxx XX 00000 5.610% Actual/360 $3,475,000
000 Xxxxxxxxxx XX 00000 5.272% Actual/360 $3,400,000
140 Xxxxxx Xxxx XX 00000 6.000% Actual/360 $3,360,000
000 Xxxxxxxxxx XX 00000 5.345% Actual/360 $3,350,000
000 Xxxxxxxxxx XX 00000 5.300% Actual/360 $3,350,000
143 Xxxxxx XX 00000 5.584% Actual/360 $3,300,000
000 Xxxxxxxxxxxx XX 00000 5.880% Actual/360 $3,200,000
000 Xxxxxxxxxx XX 00000 5.300% Actual/360 $3,205,000
146 Xxxxxxxx XX 00000 5.771% Actual/360 $3,000,000
000 Xxxxxxxxxx XX 00000 5.614% Actual/360 $3,000,000
000 Xxxxx XX 00000 5.630% Actual/360 $3,000,000
000 Xxxxxxxxxx XX 00000 6.077% Actual/360 $3,000,000
000 Xxxxxxx XX 00000 5.400% Actual/360 $3,000,000
000 Xxxxxxxx Xxxxx XX 00000 5.699% Actual/360 $2,800,000
000 Xxxxxxxxxxx XX 00000 5.609% Actual/360 $2,800,000
000 Xx Xxxxx XX 00000 5.280% Actual/360 $2,800,000
000 Xxxxxxxxx XX 00000 6.032% Actual/360 $2,750,000
155 Xxxxxxxxxx XX 00000 5.500% Actual/360 $2,643,000
000 Xxxxxxxxxxx XX 00000 5.565% Actual/360 $2,625,000
157 Xxxxxxxx XX 00000 5.351% Actual/360 $2,615,000
000 Xxxxxxxx XX 00000 5.574% Actual/360 $2,585,000
000 Xxxxxxx XX 00000 5.790% Actual/360 $2,535,392
000 Xxxx XX 00000 5.410% Actual/360 $2,500,000
000 Xxxxxxxxxx XX 00000 5.602% Actual/360 $2,500,000
000 Xxxxx Xxxxx Xxxxx XX 00000 5.330% Actual/360 $2,500,000
000 Xxxxxxxxxx XX 00000 5.131% Actual/360 $2,500,000
000 Xxxxxxxxxxx XX 00000 5.705% Actual/360 $2,380,000
000 Xxxxxxxxxxxxx XX 00000 5.736% Actual/360 $2,305,000
000 Xxxxxxx XX 00000 5.393% Actual/360 $2,280,000
000 Xxxxxxxxx XX 00000 5.629% Actual/360 $2,254,000
168 Xxxxxxx XX 00000 5.756% Actual/360 $2,240,000
000 Xx. Xxxxxx XX 00000 5.771% Actual/360 $2,200,000
000 Xxxxxxxx Xxxxxxx XX 00000 5.766% Actual/360 $2,160,000
000 Xxxxxxxxxx XX 00000 5.667% Actual/360 $2,160,000
172 Xxxxxxxx XX 00000 5.517% Actual/360 $2,100,000
000 Xxxxxxxxx XX 00000 5.630% Actual/360 $2,100,000
000 Xxxxx XX 00000 5.747% Actual/360 $2,100,000
000 Xxxxxxxx XX 00000 5.510% Actual/360 $2,100,000
000 Xxxxxxxxx XX 00000 5.154% Actual/360 $2,103,000
177 Xxxxxxxx XX 00000 5.891% Actual/360 $2,000,000
000 Xxxxxxxxxx XX 00000 5.698% Actual/360 $2,000,000
000 Xxxxxxxx XX 00000 5.747% Actual/360 $1,988,000
000 Xxxx XX 00000 5.812% Actual/360 $1,950,000
000 Xxxx XX 00000 5.887% Actual/360 $1,950,000
000 Xxxxxxxx XX 00000 5.553% Actual/360 $1,835,400
000 Xxxxxxxx XX 00000 5.747% Actual/360 $1,802,500
000 Xxxxxxx XX 00000 6.030% Actual/360 $1,720,000
000 Xxxxxxxxxxx XX 00000 5.996% Actual/360 $1,725,000
000 Xxxxxxxxxx XX 00000 5.770% Actual/360 $1,650,000
000 Xxxx Xxxxx XX 00000 5.747% Actual/360 $1,650,000
000 Xxxxxxx XX 00000 5.990% Actual/360 $1,590,000
000 Xxxxxxxxxx XX 00000 5.220% Actual/360 $1,500,000
000 Xxxxxxxxxxx XX 00000 5.747% Actual/360 $1,462,500
000 Xxxxxxx XX 00000 5.876% Actual/360 $1,400,000
000 Xxxxxxxxx XX 00000 5.719% Actual/360 $1,105,000
000 Xxxxxx XX 00000 5.923% Actual/360 $1,025,000
Sequence Cut-off Date Balance Remaining Term To Stated Maturity (months) Stated Maturity Date Due Date
-------- -------------------- ------------------------------------------ -------------------- --------
1 $149,625,000 117 12/1/2015 1st
2 $131,883,334 116 11/1/2015 1st
3 $110,000,000 116 11/1/2015 1st
4 $55,000,000 59 2/1/2011 1st
5 $55,000,000 114 9/1/2015 1st
6 $52,715,219 118 1/1/2016 1st
7 $39,500,000 118 1/1/2016 1st
8 $39,000,000 119 2/1/2016 1st
9 $39,000,000 178 1/1/2021 1st
10.1 $7,400,234
10.2 $6,158,860
10.3 $5,562,177
10.4 $5,486,735
10.5 $5,486,735
10.6 $5,418,151
10 $35,512,892 115 10/1/2015 1st
11 $34,400,000 114 9/1/2015 1st
12 $29,913,698 82 1/1/2013 1st
13 $27,000,000 81 12/1/2012 1st
14 $13,600,000 82 1/1/2013 1st
15 $11,795,000 82 1/1/2013 1st
$25,395,000 82 1/1/2013 1st
16 $24,100,000 119 2/1/2016 1st
17 $23,200,000 81 12/1/2012 1st
18 $21,053,533 118 1/1/2016 1st
19 $20,800,000 112 7/1/2015 1st
20 $20,800,000 120 3/1/2016 1st
21 $18,838,735 57 12/1/2010 1st
22 $18,388,148 138 9/1/2017 1st
23 $18,113,000 82 1/1/2013 1st
24 $17,850,000 56 11/1/2010 1st
25 $17,700,000 117 12/1/2015 1st
26 $17,124,006 116 11/1/2015 1st
27 $16,800,000 117 12/1/2015 1st
28 $16,461,828 118 1/1/2016 1st
29 $16,200,000 116 11/1/2015 1st
30 $16,000,000 105 12/1/2014 1st
31 $16,000,000 118 1/1/2016 1st
32 $15,750,000 118 1/1/2016 1st
33.1 $10,255,109
33.2 $2,713,524
33.3 $2,431,367
33 $15,400,000 82 1/1/2013 1st
34 $15,000,000 58 1/1/2011 1st
35.1 $4,744,000
35.2 $4,088,000
35.3 $2,160,000
35.4 $2,064,000
35.5 $1,072,000
35 $14,128,000 118 1/1/2016 1st
36 $14,000,000 119 2/1/2016 1st
37 $12,969,663 118 1/1/2016 1st
38.1 $3,178,261
38.2 $3,141,304
38.3 $2,513,043
38.4 $2,254,348
38.5 $1,663,043
38 $12,750,000 116 11/1/2015 1st
39 $12,550,000 119 2/1/2016 1st
40 $12,198,195 81 12/1/2012 7th
41 $12,160,476 57 12/1/2010 1st
42 $12,000,000 117 12/1/2015 1st
43 $11,945,448 117 12/1/2015 1st
44 $11,900,000 117 12/1/2015 1st
45 $11,774,031 118 1/1/2016 1st
46 $11,714,110 118 1/1/2016 1st
47 $11,600,000 117 12/1/2015 1st
48 $11,573,832 118 1/1/2016 1st
49 $11,560,255 117 12/1/2015 1st
50 $10,849,075 135 6/1/2017 1st
51 $10,800,000 120 3/1/2016 1st
52 $10,700,000 118 1/1/2016 1st
53 $10,500,000 120 3/1/2016 1st
54 $10,400,000 118 1/1/2016 1st
55 $10,001,788 118 1/1/2016 1st
56 $9,968,910 118 1/1/2016 1st
57 $9,967,787 136 7/1/2017 1st
58 $9,968,437 118 1/1/2016 1st
59 $9,900,000 117 12/1/2015 1st
60 $9,666,833 57 12/1/2010 1st
61 $9,450,000 118 1/1/2016 1st
62 $9,179,351 118 1/1/2016 1st
63 $9,000,000 141 12/1/2017 1st
64 $8,769,730 117 12/1/2015 1st
65 $8,700,000 119 2/1/2016 1st
66 $8,481,324 81 12/1/2012 1st
67 $8,300,000 119 2/1/2016 1st
68 $8,224,800 118 1/1/2016 1st
69 $8,190,000 117 12/1/2015 1st
70.1 $5,025,652
70.2 $2,648,132
70 $7,673,784 117 12/1/2015 1st
71 $7,559,189 118 1/1/2016 1st
72 $7,400,000 117 12/1/2015 1st
73 $7,150,000 118 1/1/2016 1st
74 $7,140,156 119 2/1/2016 1st
75 $7,125,000 118 1/1/2016 1st
76.1 $2,559,543
76.2 $2,340,153
76.3 $2,193,894
76 $7,093,590 116 11/1/2015 1st
77 $7,090,000 117 12/1/2015 1st
78 $7,067,050 116 11/1/2015 1st
80 $7,030,500 119 2/1/2016 1st
81 $7,000,000 117 12/1/2015 1st
82 $7,000,000 116 11/1/2015 1st
83 $6,979,306 118 1/1/2016 1st
84 $6,425,373 118 1/1/2016 1st
85 $6,370,000 118 1/1/2016 1st
86 $6,363,070 64 7/1/2011 1st
87 $6,183,757 116 11/1/2015 1st
88 $6,080,013 118 1/1/2016 1st
89 $6,000,000 117 12/1/2015 1st
90 $6,000,000 119 2/1/2016 1st
91 $5,984,187 119 2/1/2016 1st
92 $5,920,000 117 12/1/2015 1st
93 $5,865,252 119 2/1/2016 1st
94 $5,850,000 118 1/1/2016 1st
95 $5,750,000 119 2/1/2016 1st
96 $5,700,000 119 2/1/2016 1st
97 $5,700,000 116 11/1/2015 1st
98 $5,692,351 119 2/1/2016 1st
99 $5,667,024 118 1/1/2016 1st
100 $5,587,635 118 1/1/2016 1st
101 $5,582,092 117 12/1/2015 1st
102 $5,500,000 117 12/1/2015 1st
103 $5,500,000 118 1/1/2016 1st
104 $5,417,786 116 11/1/2015 1st
105 $5,412,611 118 1/1/2016 1st
106 $5,288,294 118 1/1/2016 1st
107 $5,225,000 118 1/1/2016 1st
108 $5,100,000 116 11/1/2015 1st
109 $5,084,036 118 1/1/2016 1st
110 $5,000,000 120 3/1/2016 1st
111 $4,984,391 118 1/1/2016 1st
112 $4,979,199 56 11/1/2010 1st
113 $4,970,000 117 12/1/2015 1st
114 $4,750,000 153 12/1/2018 1st
115 $4,741,361 119 2/1/2016 1st
116.1 $2,996,540
116.2 $1,703,460
116 $4,700,000 117 12/1/2015 1st
117 $4,685,636 117 12/1/2015 1st
118.1 $2,553,496
118.2 $2,127,914
118 $4,681,410 116 11/1/2015 1st
119 $4,634,260 117 12/1/2015 1st
120 $4,511,578 119 2/1/2016 1st
121 $4,470,330 114 9/1/2015 1st
122 $4,400,000 113 8/1/2015 1st
123 $4,100,000 114 9/1/2015 1st
124 $4,080,000 118 1/1/2016 1st
125 $4,044,287 119 2/1/2016 1st
126 $4,026,880 117 12/1/2015 1st
127 $3,883,274 113 8/1/2015 1st
128 $3,810,000 120 3/1/2016 1st
129 $3,650,000 117 12/1/2015 1st
130 $3,591,846 118 1/1/2016 1st
131 $3,575,000 117 12/1/2015 1st
132 $3,573,979 118 1/1/2016 1st
133 $3,569,995 118 1/1/2016 1st
134 $3,560,000 116 11/1/2015 1st
135 $3,520,000 119 2/1/2016 1st
136 $3,500,000 114 9/1/2015 1st
137 $3,493,750 116 11/1/2015 1st
138 $3,451,853 114 9/1/2015 1st
139 $3,376,953 114 9/1/2015 1st
140 $3,355,535 59 2/1/2011 1st
141 $3,341,939 118 1/1/2016 1st
142 $3,327,414 114 9/1/2015 1st
143 $3,289,293 117 12/1/2015 1st
144 $3,190,051 118 1/1/2016 1st
145 $3,183,392 114 9/1/2015 1st
146 $2,993,268 118 1/1/2016 1st
147 $2,993,092 118 1/1/2016 1st
148 $2,988,291 179 2/1/2021 1st
149 $2,987,111 117 12/1/2015 1st
150 $2,980,904 116 11/1/2015 1st
151 $2,793,642 118 1/1/2016 1st
152 $2,793,548 118 1/1/2016 1st
153 $2,787,147 116 11/1/2015 1st
154 $2,744,087 118 1/1/2016 1st
155 $2,643,000 59 2/1/2011 1st
156 $2,625,000 118 1/1/2016 1st
157 $2,604,491 117 12/1/2015 1st
158 $2,579,009 118 1/1/2016 1st
159 $2,535,392 118 1/1/2016 1st
160 $2,500,000 114 9/1/2015 1st
161 $2,500,000 117 12/1/2015 1st
162 $2,500,000 117 12/1/2015 1st
163 $2,488,203 116 11/1/2015 1st
164 $2,380,000 117 12/1/2015 1st
165 $2,305,000 118 1/1/2016 1st
166 $2,280,000 113 8/1/2015 1st
167 $2,254,000 116 11/1/2015 1st
168 $2,240,000 93 12/1/2013 1st
169 $2,195,063 118 1/1/2016 1st
170 $2,160,000 82 1/1/2013 1st
171 $2,150,777 116 11/1/2015 1st
172 $2,100,000 118 1/1/2016 1st
173 $2,100,000 118 1/1/2016 1st
174 $2,095,269 118 1/1/2016 1st
175 $2,085,764 114 9/1/2015 1st
176 $2,074,453 115 10/1/2015 1st
177 $1,995,599 118 1/1/2016 1st
178 $1,992,143 117 12/1/2015 1st
179 $1,983,521 118 1/1/2016 1st
180 $1,950,000 118 1/1/2016 1st
181 $1,945,706 118 1/1/2016 1st
182 $1,827,393 116 11/1/2015 1st
183 $1,798,439 118 1/1/2016 1st
184 $1,716,300 118 1/1/2016 1st
185 $1,714,968 116 11/1/2015 1st
186 $1,646,297 118 1/1/2016 1st
187 $1,646,283 118 1/1/2016 1st
188 $1,590,000 118 1/1/2016 1st
189 $1,500,000 114 9/1/2015 1st
190 $1,459,205 118 1/1/2016 1st
191 $1,395,702 117 12/1/2015 1st
192 $1,100,328 116 11/1/2015 1st
193 $1,021,832 118 1/1/2016 1st
$2,037,667,324
Sequence Monthly Payment Administrative Fee Rate (3) Primary Servicing Fee Rate Master Servicing Fee Rate
-------- --------------- --------------------------- -------------------------- -------------------------
1 $785,499 0.061% 0.050% 0.010%
2 $739,475 0.021% 0.010% 0.010%
3 $622,017 0.031% 0.020% 0.010%
4 $250,914 0.021% 0.010% 0.010%
5 $386,302 0.031% 0.020% 0.010%
6 $304,291 0.021% 0.010% 0.010%
7 $223,286 0.031% 0.020% 0.010%
8 $227,098 0.031% 0.020% 0.010%
9 $235,910 0.021% 0.010% 0.010%
10.1
10.2
10.3
10.4
10.5
10.6
10 $205,352 0.021% 0.010% 0.010%
11 $195,881 0.021% 0.010% 0.010%
12 $201,626 0.031% 0.020% 0.010%
13 $130,784 0.021% 0.010% 0.010%
14 $78,590 0.061% 0.050% 0.010%
15 $68,533 0.061% 0.050% 0.010%
$147,123
16 $136,686 0.031% 0.020% 0.010%
17 $137,563 0.021% 0.010% 0.010%
18 $124,963 0.021% 0.010% 0.010%
19 $115,168 0.051% 0.040% 0.010%
20 $118,009 0.021% 0.010% 0.010%
21 $108,370 0.021% 0.010% 0.010%
22 $106,735 0.021% 0.010% 0.010%
23 $105,588 0.061% 0.050% 0.010%
24 $100,601 0.061% 0.050% 0.010%
25 $99,612 0.021% 0.010% 0.010%
26 $97,498 0.021% 0.010% 0.010%
27 $93,463 0.021% 0.010% 0.010%
28 $94,567 0.061% 0.050% 0.010%
29 $89,909 0.021% 0.010% 0.010%
30 $75,474 0.021% 0.010% 0.010%
31 $90,987 0.041% 0.030% 0.010%
32 $89,723 0.021% 0.010% 0.010%
33.1
33.2
33.3
33 $89,040 0.071% 0.060% 0.010%
34 $83,874 0.021% 0.010% 0.010%
35.1
35.2
35.3
35.4
35.5
35 $77,972 0.071% 0.060% 0.010%
36 $82,181 0.051% 0.040% 0.010%
37 $74,074 0.021% 0.010% 0.010%
38.1
38.2
38.3
38.4
38.5
38 $69,854 0.021% 0.010% 0.010%
39 $72,920 0.031% 0.020% 0.010%
40 $68,045 0.071% 0.060% 0.010%
41 $69,976 0.021% 0.010% 0.010%
42 $55,287 0.071% 0.060% 0.010%
43 $71,261 0.021% 0.010% 0.010%
44 $66,625 0.021% 0.010% 0.010%
45 $69,915 0.031% 0.020% 0.010%
46 $75,777 0.061% 0.030% 0.030%
47 $64,534 0.021% 0.010% 0.010%
48 $67,613 0.041% 0.030% 0.010%
49 $64,365 0.041% 0.030% 0.010%
50 $61,080 0.021% 0.010% 0.010%
51 $62,273 0.061% 0.030% 0.030%
52 $62,572 0.021% 0.010% 0.010%
53 $68,230 0.211% 0.180% 0.030%
54 $59,947 0.051% 0.040% 0.010%
55 $57,425 0.056% 0.045% 0.010%
56 $63,699 0.061% 0.030% 0.030%
57 $57,727 0.021% 0.010% 0.010%
58 $63,026 0.021% 0.010% 0.010%
59 $56,491 0.021% 0.010% 0.010%
60 $53,889 0.021% 0.010% 0.010%
61 $53,478 0.031% 0.020% 0.010%
62 $53,806 0.021% 0.010% 0.010%
63 $96,651 0.061% 0.030% 0.030%
64 $48,714 0.021% 0.010% 0.010%
65 $50,220 0.031% 0.020% 0.010%
66 $50,417 0.021% 0.010% 0.010%
67 $47,581 0.021% 0.010% 0.010%
68 $53,205 0.061% 0.030% 0.030%
69 $45,854 0.021% 0.010% 0.010%
70.1
70.2
70 $45,673 0.021% 0.010% 0.010%
71 $43,163 0.021% 0.010% 0.010%
72 $32,593 0.021% 0.010% 0.010%
73 $41,227 0.031% 0.020% 0.010%
74 $41,309 0.021% 0.010% 0.010%
75 $41,448 0.021% 0.010% 0.010%
76.1
76.2
76.3
76 $38,864 0.021% 0.010% 0.010%
77 $40,810 0.071% 0.060% 0.010%
78 $39,079 0.041% 0.030% 0.010%
80 $41,532 0.021% 0.010% 0.010%
81 $39,102 0.021% 0.010% 0.010%
82 $40,712 0.061% 0.050% 0.010%
83 $46,177 0.111% 0.100% 0.010%
84 $41,651 0.041% 0.030% 0.010%
85 $37,295 0.041% 0.030% 0.010%
86 $39,355 0.021% 0.010% 0.010%
87 $36,738 0.021% 0.010% 0.010%
88 $35,215 0.081% 0.070% 0.010%
89 $34,426 0.021% 0.010% 0.010%
90 $33,737 0.021% 0.010% 0.010%
91 $40,733 0.021% 0.010% 0.010%
92 $33,442 0.021% 0.010% 0.010%
93 $41,950 0.021% 0.010% 0.010%
94 $33,179 0.021% 0.010% 0.010%
95 $32,778 0.021% 0.010% 0.010%
96 $35,603 0.031% 0.020% 0.010%
97 $30,997 0.041% 0.030% 0.010%
98 $33,823 0.041% 0.030% 0.010%
99 $32,830 0.081% 0.070% 0.010%
100 $33,108 0.061% 0.030% 0.030%
101 $32,364 0.021% 0.010% 0.010%
102 $30,031 0.021% 0.010% 0.010%
103 $32,264 0.021% 0.010% 0.010%
104 $34,749 0.031% 0.020% 0.010%
105 $31,363 0.041% 0.030% 0.010%
106 $31,328 0.041% 0.030% 0.010%
107 $30,280 0.071% 0.060% 0.010%
108 $29,986 0.041% 0.030% 0.010%
109 $32,331 0.031% 0.020% 0.010%
110 $28,562 0.031% 0.020% 0.010%
111 $31,758 0.031% 0.020% 0.010%
112 $29,354 0.021% 0.010% 0.010%
113 $29,466 0.041% 0.030% 0.010%
114 $28,393 0.021% 0.010% 0.010%
115 $29,883 0.051% 0.040% 0.010%
116.1
116.2
116 $27,935 0.041% 0.030% 0.010%
117 $27,877 0.031% 0.020% 0.010%
118.1
118.2
118 $25,648 0.021% 0.010% 0.010%
119 $25,989 0.021% 0.010% 0.010%
120 $25,836 0.021% 0.010% 0.010%
121 $25,311 0.091% 0.080% 0.010%
122 $24,483 0.041% 0.030% 0.010%
123 $21,817 0.071% 0.060% 0.010%
124 $23,603 0.031% 0.020% 0.010%
125 $22,818 0.021% 0.010% 0.010%
126 $23,139 0.041% 0.030% 0.010%
127 $21,985 0.041% 0.030% 0.010%
128 $22,234 0.031% 0.020% 0.010%
129 $21,229 0.071% 0.060% 0.010%
130 $20,926 0.081% 0.070% 0.010%
131 $20,366 0.041% 0.030% 0.010%
132 $29,798 0.061% 0.030% 0.030%
133 $22,996 0.031% 0.020% 0.010%
134 $20,496 0.021% 0.010% 0.010%
135 $20,737 0.021% 0.010% 0.010%
136 $18,624 0.071% 0.060% 0.010%
137 $20,233 0.041% 0.030% 0.010%
138 $20,151 0.061% 0.030% 0.030%
139 $18,821 0.021% 0.010% 0.010%
140 $20,145 0.031% 0.020% 0.010%
141 $18,696 0.091% 0.080% 0.010%
142 $18,603 0.081% 0.070% 0.010%
143 $18,911 0.041% 0.030% 0.010%
144 $20,384 0.061% 0.030% 0.030%
145 $17,798 0.081% 0.070% 0.010%
146 $17,547 0.041% 0.030% 0.010%
147 $17,249 0.071% 0.060% 0.010%
148 $24,846 0.111% 0.100% 0.010%
149 $19,470 0.041% 0.030% 0.010%
150 $18,244 0.041% 0.030% 0.010%
151 $16,249 0.091% 0.080% 0.010%
152 $16,090 0.091% 0.080% 0.010%
153 $15,514 0.061% 0.030% 0.030%
154 $16,544 0.021% 0.010% 0.010%
155 $12,282 0.021% 0.010% 0.010%
156 $15,012 0.021% 0.010% 0.010%
157 $15,150 0.021% 0.010% 0.010%
158 $14,798 0.041% 0.030% 0.010%
159 $14,860 0.041% 0.030% 0.010%
160 $14,054 0.041% 0.030% 0.010%
161 $14,355 0.091% 0.080% 0.010%
162 $13,929 0.091% 0.080% 0.010%
163 $13,621 0.041% 0.030% 0.010%
164 $13,821 0.021% 0.010% 0.010%
165 $13,431 0.091% 0.080% 0.010%
166 $12,793 0.041% 0.030% 0.010%
167 $12,981 0.041% 0.030% 0.010%
168 $13,081 0.021% 0.010% 0.010%
169 $12,868 0.041% 0.030% 0.010%
170 $12,627 0.021% 0.010% 0.010%
171 $12,492 0.071% 0.060% 0.010%
172 $11,946 0.071% 0.060% 0.010%
173 $12,095 0.071% 0.060% 0.010%
174 $12,251 0.041% 0.030% 0.010%
175 $12,043 0.061% 0.030% 0.030%
176 $14,755 0.041% 0.030% 0.010%
177 $11,851 0.041% 0.030% 0.010%
178 $12,105 0.071% 0.060% 0.010%
179 $11,598 0.041% 0.030% 0.010%
180 $11,457 0.041% 0.030% 0.010%
181 $11,550 0.021% 0.010% 0.010%
182 $10,482 0.041% 0.030% 0.010%
183 $10,515 0.041% 0.030% 0.010%
184 $10,345 0.021% 0.010% 0.010%
185 $11,110 0.041% 0.030% 0.010%
186 $9,650 0.021% 0.010% 0.010%
187 $9,626 0.041% 0.030% 0.010%
188 $9,523 0.041% 0.030% 0.010%
189 $8,255 0.071% 0.060% 0.010%
190 $8,532 0.041% 0.030% 0.010%
191 $8,282 0.041% 0.030% 0.010%
192 $6,427 0.041% 0.030% 0.010%
193 $6,556 0.041% 0.030% 0.010%
Sequence Ownership Interest Cross-Collateralized Loans Original Amortization (months) (4) ARD Loan Grace Period
-------- ------------------ -------------------------- ---------------------------------- -------- ------------
1 Fee No Scheduled Amortization Xx 0
0 Xxx Xx 000 Xx 0
3 Fee No 360 Xx 0
0 Xxx Xx Xx 0
0 Xxx Xx 360 No 5
6 Fee No 360 No 5
7 Fee No 360 No 5
8 Fee No 360 Xx 0
0 Xxx Xx 000 Xx 5
10.1 Fee
10.2 Fee
10.3 Fee
10.4 Fee
10.5 Fee
10.6 Fee
10 Fee No 360 Xx 0
00 Xxx Xx 000 Xx 0
12 Fee No 300 No 5
13 Fee No Yes 5
14 Fee Yes(BACM 06-1-A) 360 Xx 0
00 Xxx Xxx(XXXX 00-0-X) 000 Xx 5
360 No
16 Fee No 360 No 5
17 Fee No 360 Xx 0
00 Xxx Xx 000 Xx 5
19 Fee No 360 No 10
20 Fee No 360 Xx 0
00 Xxx Xx 000 Xx 5
22 Fee No 360 Xx 0
00 Xxx Xx 000 Xx 5
24 Fee No 360 Xx 0
00 Xxx Xx 000 Xx 5
26 Leasehold No 360 Xx 0
00 Xxx Xx 000 Xx 5
28 Fee No 360 Xx 0
00 Xxx Xx 000 Xx 0
30 Fee No Yes 5
31 Fee No 360 Xx 0
00 Xxx Xx 000 Xx 5
33.1 Fee
33.2 Fee
33.3 Fee
33 Fee No 360 Yes 5
34 Fee No 360 Yes 5
35.1 Fee
35.2 Fee
35.3 Fee
35.4 Fee
35.5 Fee
35 Fee No 360 No 5
36 Fee No 360 Xx 0
00 Xxx Xx 000 Xx 5
38.1 Fee
38.2 Fee
38.3 Fee
38.4 Fee
38.5 Fee
38 Fee No 360 Xx 0
00 Xxx Xx 000 Xx 5
40 Fee No 360 Xx 0
00 Xxx Xx 000 Xx 5
42 Fee No No 5
43 Fee No 360 Xx 0
00 Xxx Xx 000 Xx 5
45 Fee No 360 Xx 0
00 Xxx Xx 000 Xx 5
47 Fee No 360 Xx 0
00 Xxx Xx 000 Xx 5
49 Fee/Leasehold No 360 Xx 0
00 Xxx Xx 000 Xx 10
51 Fee No 360 Xx 0
00 Xxx Xx 000 Xx 5
53 Fee No 300 Xx 0
00 Xxx Xx 000 Xx 5
55 Fee No 360 Xx 0
00 Xxx Xx 000 Xx 5
57 Fee No 360 Xx 0
00 Xxx Xx 000 Xx 5
59 Fee No 360 Xx 0
00 Xxx Xx 000 Xx 5
61 Fee No 360 Xx 0
00 Xxx Xx 000 Xx 5
63 Fee No 120 No 5
64 Fee/Leasehold No 360 No 5
65 Fee No 360 Xx 0
00 Xxx Xx 000 Xx 5
67 Fee No 360 No 5
68 Fee No 300 Xx 0
00 Xxx Xx 000 Xx 5
70.1 Fee
70.2 Fee
70 Fee No 360 Xx 0
00 Xxx Xx 000 Xx 5
72 Fee No Xx 0
00 Xxx Xx 000 Xx 5
74 Fee No 360 Xx 0
00 Xxx Xx 000 Xx 5
76.1 Fee
76.2 Fee
76.3 Fee
76 Fee No 360 Xx 0
00 Xxx Xx 000 Xx 10
78 Fee No 360 Xx 0
00 Xxx Xx 000 Xx 5
81 Fee No 360 Xx 0
00 Xxx Xx 000 Xx 5
83 Fee No 300 Xx 0
00 Xxx Xx 000 Xx 5
85 Fee No 360 Xx 0
00 Xxx Xx 000 Xx 5
87 Fee No 360 Xx 0
00 Xxx Xx 000 Xx 5
89 Fee No 360 No 5
90 Fee No 360 Yes 5
91 Fee No 240 Xx 0
00 Xxx Xx 000 Xx 5
93 Fee No 240 No 5
94 Fee No 360 Xx 0
00 Xxx Xx 000 Xx 5
96 Fee No 324 Xx 0
00 Xxx Xx 000 Xx 5
98 Fee No 360 Xx 0
00 Xxx Xx 000 Xx 5
100 Fee Xx 000 Xx 0
000 Xxx Xx 000 Xx 5
102 Fee No 360 No 5
103 Fee Xx 000 Xx 0
000 Xxx Xx 000 Xx 5
105 Fee Xx 000 Xx 0
000 Xxx Xx 000 Xx 5
107 Fee Xx 000 Xx 0
000 Xxx Xx 000 Xx 5
109 Fee No 300 No 5
110 Fee Xx 000 Xx 0
000 Xxx Xx 000 Xx 5
112 Leasehold Xx 000 Xx 0
000 Xxx Xx 000 Xx 5
114 Fee Xx 000 Xx 0
000 Xxx Xx 000 Xx 5
116.1 Fee
116.2 Fee
116 Fee Xx 000 Xx 0
000 Xxx Xx 000 Xx 5
118.1 Fee
118.2 Fee
118 Fee No 360 No 5
119 Fee Xx 000 Xx 0
000 Xxx Xx 000 Xx 5
121 Fee Xx 000 Xx 0
000 Xxx Xx 000 Xx 7
123 Fee Xx 000 Xx 0
000 Xxx Xx 000 Xx 5
125 Fee Xx 000 Xx 0
000 Xxx Xx 000 Xx 5
127 Fee Xx 000 Xx 0
000 Xxx Xx 000 Xx 5
129 Fee Xx 000 Xx 0
000 Xxx Xx 000 Xx 5
131 Fee Xx 000 Xx 0
000 Xxx Xx 000 Xx 5
133 Fee Xx 000 Xx 0
000 Xxx Xx 000 Xx 5
135 Fee Xx 000 Xx 0
000 Xxx Xx 000 Xx 5
137 Fee Xx 000 Xx 0
000 Xxx Xx 000 Xx 5
139 Fee No 360 No 5
140 Fee Xx 000 Xx 0
000 Xxx Xx 000 Xx 5
142 Fee Xx 000 Xx 0
000 Xxx Xx 000 Xx 5
144 Fee Xx 000 Xx 0
000 Xxx Xx 000 Xx 5
146 Fee Xx 000 Xx 0
000 Xxx Xx 000 Xx 5
148 Fee Xx 000 Xx 0
000 Xxx Xx 000 Xx 5
150 Fee Xx 000 Xx 0
000 Xxx Xx 000 Xx 5
152 Fee Xx 000 Xx 0
000 Xxx Xx 000 Xx 5
154 Fee No 360 No 5
155 Fee No No 0
156 Fee No 360 Xx 0
000 Xxx Xx 000 Xx 5
158 Fee Xx 000 Xx 0
000 Xxx Xx 000 Xx 5
160 Fee Xx 000 Xx 0
000 Xxx Xx 000 Xx 5
162 Fee Xx 000 Xx 0
000 Xxx Xx 000 Xx 5
164 Fee Xx 000 Xx 0
000 Xxx Xx 000 Xx 5
166 Fee Xx 000 Xx 0
000 Xxx Xx 000 Xx 5
168 Fee Xx 000 Xx 0
000 Xxx Xx 000 Xx 5
170 Fee Xx 000 Xx 0
000 Xxx Xx 000 Xx 5
172 Fee Xx 000 Xx 0
000 Xxx Xx 000 Xx 5
174 Fee Xx 000 Xx 0
000 Xxx Xx 000 Xx 5
176 Leasehold Xx 000 Xx 0
000 Xxx Xx 000 Xx 5
178 Fee Xx 000 Xx 0
000 Xxx Xx 000 Xx 5
180 Fee No 360 No 5
181 Fee Xx 000 Xx 0
000 Xxx Xx 000 Xx 5
183 Fee Xx 000 Xx 0
000 Xxx Xx 000 Xx 5
185 Fee Xx 000 Xx 0
000 Xxx Xx 000 Xx 5
187 Fee Xx 000 Xx 0
000 Xxx Xx 000 Xx 5
189 Fee No 360 No 10
190 Fee Xx 000 Xx 0
000 Xxx Xx 000 Xx 5
192 Fee No 360 Xx 0
000 Xxx Xx 000 Xx 5
1 Two Mortgaged Properties related to Loan No. 20051519 and Loan No.
20051383 are located in Mexico City, Mexico and Grand Cayman, Cayman
Islands, respectively.
2 Rates are full precision in the "BACM2006_1.xls" file located on the
computer diskette.
3 Administrative Fee Rate includes the rates at which the master servicing
fee (and any sub-servicing fee) and trustee fee accrue.
4 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
5 Each of the Mortgaged Properties related to Loan No. 59414 has a value
based on either the year opened or year built, depending on the related
child development center.
6 Year renovated based on appraisal.
7 For the Mortgaged Properties related to Loan No. 59414, occupancy is based
on a utilization rate.
8 For the Mortgaged Properties related to Loan No. 59414, occupancy date is
based on a trailing twelve month utilization rate.
9 The borrower for Loan No. 59414 receives an annual payment of $90,800,000
(via the "Master Lease").
10 For Mortgage Loan No. 59414 the Most Recent NOI and Full Year NOI
represent the EBITDAs of the underlying properties.
11 For the Mortgaged Properties related to Loan No. 59401, four of the five
properties contain trailing twelve month Most Recent Financials ending
August 31, 2005 and one ending June 30, 2005.
12 Loan No. 59414 is secured by 713 properties which are broken out
separately on Annex A2.
13 A sampling of 25% of the Mortgaged Properties was reviewed for Loan No.
59414.
14 The related appraiser performed appraisals on 393 of the 713 properties in
the related Mortgage Loan portfolio for Loan No. 59414, from which the
appraiser extrapolated a value based on a formula for the remainder of the
properties.
SCHEDULE II
Sub-Servicing Agreements in Effect as of the Closing Date
1. Sub-Servicing Agreement, dated as of March 1, 2006, by and
between BANK OF AMERICA, NATIONAL ASSOCIATION, as Master Servicer, and GMAC
COMMERCIAL MORTGAGE CORPORATION, as Sub-Servicer. 2. Sub-Servicing Agreement,
dated as of March 1, 2006, by and between BANK OF AMERICA, NATIONAL ASSOCIATION,
as Master Servicer, and SUNTRUST BANK, as Sub-Servicer.
3. Sub-Servicing Agreement, dated as of March 1, 2006, by and
between BANK OF AMERICA, NATIONAL ASSOCIATION, as Master Servicer, and WACHOVIA
BANK, NATIONAL ASSOCIATION, as Sub-Servicer.
4. Sub-Servicing Agreement, dated as of March 1, 2006, by and
between BANK OF AMERICA, NATIONAL ASSOCIATION, as Master Servicer, CAPSTONE
REALTY ADVISORS, LLC, COLLATERAL MORTGAGE CAPITAL, LLC, LAUREATE CAPITAL LLC,
CBRE MELODY OF TEXAS, LP, and NORTHMARQ CAPITAL, INC., each as Sub-Servicers.
5. Sub-Servicing Agreement, dated as of March 1, 2006, by and
between BANK OF AMERICA, NATIONAL ASSOCIATION, as Master Servicer, and MIDLAND
LOAN SERVICES, INC., as Sub-Servicer.
6. Sub-Servicing Agreement, dated as of March 1, 2006, by and
between BANK OF AMERICA, NATIONAL ASSOCIATION, as Master Servicer, and XXXXXXXX
XXXXXXXX XXXXXX, X.X., as Sub-Servicer.
SCHEDULE III
Schedule of Exceptions under Section 2.02(a)
None.
SCHEDULE IV
Class XP Reference Rates
Interest Class X Interest Class XP
Accrual Reference Accrual Reference
Period Distribution Date Rate Period Distribution Date Rate
------ ----------------- --------- -------- ----------------- ---------
1 4/10/2006 5.746400% 43 10/10/2009 5.557800%
2 5/10/2006 5.557900% 44 11/10/2009 5.744100%
3 6/10/2006 5.744100% 45 12/10/2009 5.557300%
4 7/10/2006 5.557800% 46 1/10/2010 5.557300%
5 8/10/2006 5.744000% 47 2/10/2010 5.557300%
6 9/10/2006 5.744000% 48 3/10/2010 5.559100%
7 10/10/2006 5.557700% 49 4/10/2010 5.743500%
8 11/10/2006 5.743900% 50 5/10/2010 5.557200%
9 12/10/2006 5.557600% 51 6/10/2010 5.743400%
10 1/10/2007 5.557600% 52 7/10/2010 5.557100%
11 2/10/2007 5.557500% 53 8/10/2010 5.743400%
12 3/10/2007 5.559300% 54 9/10/2010 5.745200%
13 4/10/2007 5.745200% 55 10/10/2010 5.558900%
14 5/10/2007 5.558800% 56 11/10/2010 5.745200%
15 6/10/2007 5.745100% 57 12/10/2010 5.560400%
16 7/10/2007 5.558700% 58 1/10/2011 5.562100%
17 8/10/2007 5.745000% 59 2/10/2011 5.564100%
18 9/10/2007 5.744900% 60 3/10/2011 5.571200%
19 10/10/2007 5.558600% 61 4/10/2011 5.755200%
20 11/10/2007 5.744800% 62 5/10/2011 5.568600%
21 12/10/2007 5.558500% 63 6/10/2011 5.755600%
22 1/10/2008 5.744700% 64 7/10/2011 5.569000%
23 2/10/2008 5.558400% 65 8/10/2011 5.755600%
24 3/10/2008 5.559300% 66 9/10/2011 5.755600%
25 4/10/2008 5.744600% 67 10/10/2011 5.569000%
26 5/10/2008 5.558300% 68 11/10/2011 5.755600%
27 6/10/2008 5.744500% 69 12/10/2011 5.569000%
28 7/10/2008 5.558200% 70 1/10/2012 5.755600%
29 8/10/2008 5.744400% 71 2/10/2012 5.569000%
30 9/10/2008 5.744400% 72 3/10/2012 5.570200%
31 10/10/2008 5.558100% 73 4/10/2012 5.755600%
32 11/10/2008 5.744300% 74 5/10/2012 5.569000%
33 12/10/2008 5.558000% 75 6/10/2012 5.755600%
34 1/10/2009 5.558000% 76 7/10/2012 5.567300%
35 2/10/2009 5.558000% 77 8/10/2012 5.753800%
36 3/10/2009 5.559500% 78 9/10/2012 5.753800%
37 4/10/2009 5.744200% 79 10/10/2012 5.568200%
38 5/10/2009 5.557900% 80 11/10/2012 5.751100%
39 6/10/2009 5.744200% 81 12/10/2012 5.551400%
40 7/10/2009 5.557900% 82 1/10/2013 5.549700%
41 8/10/2009 5.744100% 83 2/10/2013 5.549600%
42 9/10/2009 5.744100% 84 3/10/2013 5.552800%
SCHEDULE V
IO LOANS
NOTICE TO RECIPIENT
The asset-backed securities referred to in these materials, and the asset pools
backing them, are subject to modification or revision (including the possibility
that one or more classes of securities may be split, combined or eliminated at
any time prior to issuance or availability of a final prospectus) and are
offered on a "when, as and if issued" basis. You understand that, when you are
considering the purchase of these securities, a contract of sale will come into
being no sooner than the date on which the relevant class has been priced and we
have confirmed the allocation of securities to be made to you; any "indications
of interest" expressed by you, and any "soft circles" generated by us, will not
create binding contractual obligations for you or us.
Because the asset-backed securities are being offered on a "when, as and if
issued" basis, any such contract will terminate, by its terms, without any
further obligation or liability between us, if the securities themselves, or the
particular class to which the contract relates, are not issued. Because the
asset-backed securities are subject to modification or revision, any such
contract also is conditioned upon the understanding that no material change will
occur with respect to the relevant class of securities prior to the closing
date. If a material change does occur with respect to such class, our contract
will terminate, by its terms, without any further obligation or liability
between us (the "Automatic Termination"). If an Automatic Termination occurs, we
will provide you with revised offering materials reflecting the material change
and give you an opportunity to purchase such class. To indicate your interest in
purchasing the class, you must communicate to us your desire to do so within
such timeframe as may be designated in connection with your receipt of the
revised offering materials.
The information contained in these materials may be based on assumptions
regarding market conditions and other matters as reflected herein. Banc of
America Securities LLC (the "Underwriter") makes no representation regarding the
reasonableness of such assumptions or the likelihood that any such assumptions
will coincide with actual market conditions or events, and these materials
should not be relied upon for such purposes. The Underwriter and its affiliates,
officers, directors, partners and employees, including persons involved in the
preparation or issuance of these materials, may, from time to time, have long or
short positions in, and buy and sell, the securities mentioned herein or
derivatives thereof (including options). Information in these materials is
current as of the date appearing on the material only. Information in these
materials regarding any securities discussed herein supersedes all prior
information regarding such securities. These materials are not to be construed
as an offer to sell or the solicitation of any offer to buy any security in any
jurisdiction where such an offer or solicitation would be illegal.
The issuer has filed a registration statement (including a prospectus) with the
SEC for the offering to which this communication relates. Before you invest, you
should read the prospectus in that registration statement and other documents
the issuer has filed with the SEC for more complete information about the issuer
and this offering. You may get these documents for free by visiting XXXXX on the
SEC Web site at xxx.xxx.xxx. Alternatively, the issuer, any underwriter or any
dealer participating in the offering will arrange to send you the prospectus if
you request it by calling toll-free 1-800-294-1322 or you e-mail a request to
xx.xxxxxxxxxx_xxxxxxxxxxxx@xxxxxxxxxxxxxx.xxx. The securities may not be
suitable for all investors. Banc of America Securities LLC and its affiliates
may acquire, hold or sell positions in these securities, or in related
derivatives, and may have an investment or commercial banking relationship with
the issuer.
IRS CIRCULAR 230 NOTICE: THIS FREE WRITING PROSPECTUS IS NOT INTENDED OR WRITTEN
TO BE USED, AND CANNOT BE USED, FOR THE PURPOSE OF AVOIDING U.S. FEDERAL, STATE
OR LOCAL TAX PENALTIES. THIS FREE WRITING PROSPECTUS IS WRITTEN AND PROVIDED BY
THE UNDERWRITERS IN CONNECTION WITH THE PROMOTION OR MARKETING OF THE
TRANSACTIONS OR MATTERS ADDRESSED HEREIN. INVESTORS SHOULD SEEK ADVICE BASED ON
THEIR PARTICULAR CIRCUMSTANCES FROM AN INDEPENDENT TAX ADVISOR.
------------------------------------------------------------------------------------------------------------------------------------
IO %
LoanNumber PropertyName LoanTransaction Cutoff Balance Amortization Type Period of Pool
------------------------------------------------------------------------------------------------------------------------------------
59264 Desert Passage BACM 06-1 131,883,334 IO, Balloon 36 6.5%
20050248 Waterfront at Port Xxxxxxx BACM 06-1 110,000,000 IO, Balloon 24 5.4%
59639 Fairmont Sonoma Mission Inn & Spa BACM 06-1 55,000,000 Interest Only 60 2.7%
20051519 Torre Mayor BACM 06-1 55,000,000 IO, Balloon 12 2.7%
59431 Medical Mutual Headquarters BACM 06-1 52,715,219 IO, Balloon 36 2.6%
20051227 Frandor Shopping Center BACM 06-1 39,500,000 IO, Balloon 36 1.9%
59551 Plaza Antonio BACM 06-1 39,000,000 IO, Balloon 60 1.9%
20051248 Metro Plaza at Jersey City BACM 06-1 39,000,000 IO, Balloon 36 1.9%
59156 Jordache Distribution BACM 06-1 34,400,000 IO, Balloon 24 1.7%
59355 DEA Division Headquarters BACM 06-1 27,000,000 Interest Only, Hyper Am 84 1.3%
20051464 Avalon Parc Apartments BACM 06-1 24,100,000 IO, Balloon 48 1.2%
59531 00 Xxxxxxxxx Xxxxxx BACM 06-1 23,200,000 IO, Balloon 36 1.1%
59474 Accor North American Headquarters BACM 06-1 20,800,000 IO, Balloon 36 1.0%
59617 Camelot Apartments BACM 06-1 20,800,000 IO, Balloon 36 1.0%
20051394 Montpelier II BACM 06-1 18,113,000 IO, Balloon 36 0.9%
59268 Special Data Processing Building BACM 06-1 17,850,000 IO, Balloon 12 0.9%
00000 Xxxxxxxxx Xxxxxxx BACM 06-1 17,700,000 IO, Balloon 60 0.9%
00000 Xxxxxx Xxxxxxx West BACM 06-1 16,800,000 IO, Balloon 36 0.8%
00000 Xxxxxxxxx Xxxxx Apartments BACM 06-1 16,200,000 IO, Balloon 24 0.8%
59291 Department of Homeland Security BACM 06-1 16,000,000 Interest Only, Hyper Am 108 0.8%
00000 Xxxxxx Xxxxx BACM 06-1 16,000,000 IO, Balloon 36 0.8%
59509 Xxxxxxx Xxxx at Bridge Mill BACM 06-1 15,750,000 IO, Balloon 60 0.8%
59513 Southlake Flex Portfolio BACM 06-1 15,400,000 IO, Hyper Am 24 0.8%
59480 North Park Towers BACM 06-1 15,000,000 IO, Hyper Am 36 0.7%
59379 Storage Plus Portfolio BACM 06-1 14,128,000 IO, Balloon 60 0.7%
00000 Xxxxxxx Xxxxxxx Apartments BACM 06-1 14,000,000 IO, Balloon 36 0.7%
20051381 Bass Creek Corporate Center BACM 06-1 13,600,000 IO, Balloon 36 0.7%
59401 Xxxxxx and Xxxxxx Self Storage Portfolio BACM 06-1 12,750,000 IO, Balloon 36 0.6%
20051279 Palermo Apartments BACM 06-1 12,550,000 IO, Balloon 48 0.6%
59529 00000 Xxxxxxxxx Xxxxxxx BACM 06-1 12,000,000 Interest Only 120 0.6%
00000 Xxxx Xxx Xxxx BACM 06-1 11,900,000 IO, Balloon 36 0.6%
20051351 Beltway 8 BACM 06-1 11,795,000 IO, Balloon 36 0.6%
59483 Holiday Village BACM 06-1 11,600,000 IO, Balloon 36 0.6%
9000407 Xxxxxxx Xxxxx BACM 06-1 10,800,000 IO, Balloon 48 0.5%
59402 Wabash Landing BACM 06-1 10,700,000 IO, Balloon 24 0.5%
16943 Parma Xxxxx Apartments BACM 06-1 10,400,000 IO, Balloon 36 0.5%
59433 BJ's Wholesale Club - Miami, FL BACM 06-1 9,967,787 IO, Balloon 36 0.5%
59466 University Springs Apartments BACM 06-1 9,900,000 IO, Balloon 36 0.5%
20050864 Palisades Trailer Bowl MHP BACM 06-1 9,450,000 IO, Balloon 60 0.5%
9000330 FDA Building BACM 06-1 9,000,000 IO, Fully Am 21 0.4%
20051405 24 Hour Fitness BACM 06-1 8,700,000 IO, Balloon 36 0.4%
59593 Assured Self Storage BACM 06-1 8,300,000 IO, Balloon 12 0.4%
59487 Eldorado Village BACM 06-1 8,190,000 IO, Balloon 36 0.4%
59615 Raleigh North Apartments and BACM 06-1 7,673,784 IO, Balloon 36 0.4%
` Milbank Court Apartments ` ` ` ` `
59476 Timberhills Shopping Center BACM 06-1 7,400,000 Interest Only 120 0.4%
20051361 Pontrail Apartments BACM 06-1 7,150,000 IO, Balloon 60 0.4%
59583 Best Buy - Erie, PA BACM 06-1 7,125,000 IO, Balloon 24 0.3%
59400 U-Lock Portfolio BACM 06-1 7,093,590 IO, Balloon 36 0.3%
00000 Xxxxxxxx Xxxxxxxx Apartments BACM 06-1 7,090,000 IO, Balloon 60 0.3%
59491 StorQuest - Camarillo BACM 06-1 7,000,000 IO, Balloon 36 0.3%
16939 Bent Tree Apartments BACM 06-1 7,000,000 IO, Balloon 36 0.3%
16184 Sherwood Office Building BACM 06-1 6,370,000 IO, Balloon 60 0.3%
59446 The Xxxxxxx MHC BACM 06-1 6,000,000 IO, Balloon 24 0.3%
00000 Xxxxxx Xxxxxxx Xxxxxxx Xxxxxx BACM 06-1 6,000,000 IO, Hyper Am 36 0.3%
00000 Xxxxxx Xxxxxx Xxxxxx BACM 06-1 5,920,000 IO, Balloon 60 0.3%
59545 Crossroads Storage BACM 06-1 5,850,000 IO, Balloon 24 0.3%
59318 Phoenix Airport Industrial BACM 06-1 5,750,000 IO, Balloon 48 0.3%
20051476 Mosaica Office Building BACM 06-1 5,700,000 IO, Balloon 36 0.3%
15733 Royal Hills BACM 06-1 5,700,000 IO, Balloon 24 0.3%
59505 0000 Xxxxxx Xxxx BACM 06-1 5,500,000 IO, Balloon 24 0.3%
59607 Quest Northgate BACM 06-1 5,500,000 IO, Balloon 36 0.3%
59510 Xxxxxx Crossing BACM 06-1 5,225,000 IO, Balloon 36 0.3%
15095 Embassy Tower BACM 06-1 5,100,000 IO, Balloon 24 0.3%
20050944 The Carrier Building BACM 06-1 5,000,000 IO, Balloon 12 0.2%
15756 Xxxxxxx Forest BACM 06-1 4,970,000 IO, Balloon 60 0.2%
59582 Best Buy - Northridge, CA BACM 06-1 4,750,000 IO, Balloon 60 0.2%
16154 Eagles Portfolio Roll Up BACM 06-1 4,700,000 IO, Balloon 24 0.2%
59399 Space Saver Self Storage and BACM 06-1 4,681,410 IO, Balloon 36 0.2%
` Pack Rat Self Storage ` ` ` ` `
14278 Platinum Storage (Xxxxxx) BACM 06-1 4,400,000 IO, Balloon 24 0.2%
59214 Hermitage Apartments BACM 06-1 4,100,000 IO, Balloon 84 0.2%
20051422 Allsize Ministorage BACM 06-1 4,080,000 IO, Balloon 24 0.2%
16941 Xxxxxxxx Xxxxx Xxxxxxxxxx-XX XXXX 00-0 3,650,000 IO, Balloon 36 0.2%
00000 Xxxxxxxx Xxxxxx Xxxxxx BACM 06-1 3,575,000 IO, Balloon 12 0.2%
58947 Stone Creek Apartments BACM 06-1 3,560,000 IO, Balloon 24 0.2%
59578 Sunset Self Storage BACM 06-1 3,520,000 IO, Balloon 36 0.2%
59215 Ridgeside Apartments BACM 06-1 3,500,000 IO, Balloon 84 0.2%
00000 Xxxxxxx XXX BACM 06-1 3,493,750 IO, Balloon 60 0.2%
59441 Xxxxxxx Crossing Verizon Pad BACM 06-1 2,643,000 Interest Only 60 0.1%
00000 Xxxxxx Xxxx Xxxxxxxx Xxxx BACM 06-1 2,625,000 IO, Balloon 24 0.1%
15475 Magnolia Building BACM 06-1 2,535,392 IO, Balloon 24 0.1%
14280 American Self Storage BACM 06-1 2,500,000 IO, Balloon 24 0.1%
00000 Xxxx Xxxx Apartments BACM 06-1 2,500,000 IO, Balloon 24 0.1%
14718 Esquire House BACM 06-1 2,500,000 IO, Balloon 60 0.1%
59530 South West Self Storage BACM 06-1 2,380,000 IO, Balloon 24 0.1%
16394 Bellefontaine Retail BACM 06-1 2,305,000 IO, Balloon 24 0.1%
13660 Xxxxxxxxx Lakes Retail Center BACM 06-1 2,280,000 IO, Balloon 36 0.1%
00000 Xxxxxxxxx Xxxxx-Xxxxxxxxx BACM 06-1 2,254,000 IO, Balloon 36 0.1%
00000 XxxxxxXxx - Xxxxxxx, XX BACM 06-1 2,240,000 IO, Balloon 12 0.1%
59470 Hammer Ranch BACM 06-1 2,100,000 IO, Balloon 60 0.1%
00000 Xxxxxx Xxxxxx Retail BACM 06-1 2,100,000 IO, Balloon 36 0.1%
00000 Xxxx Xxxxxxxx Xxxxxxxx BACM 06-1 1,950,000 IO, Balloon 12 0.1%
15458 Canal Building BACM 06-1 1,590,000 IO, Balloon 24 0.1%
59269 Arbors Apartments BACM 06-1 1,500,000 IO, Balloon 24 0.1%
SCHEDULE VI
ADDITIONAL DEBT
Existing
Loan Additional
LoanNumber PropertyName Transaction Cutoff Balance Debt
-----------------------------------------------------------------------------------------------------
59264 Desert Passage BACM 06-1 131,883,334 Yes
20051519 Torre Mayor BACM 06-1 55,000,000 Yes
20051463 Xxxxxxx Inn Cincinnati - Blue Ash BACM 06-1 4,741,361 Yes
59414 KinderCare Portfolio BACM 06-1 149,625,000 Yes
00000 Xxxxxxxxx Xxxxx Apartments BACM 06-1 16,200,000 Yes
00000 Xxxxx Xxxx Towers BACM 06-1 15,000,000 Yes
20051347 Willowind Apartments BACM 06-1 3,355,535 Yes
16394 Bellefontaine Retail BACM 06-1 2,305,000 Yes
59639 Fairmont Sonoma Mission Inn & Spa BACM 06-1 55,000,000 No
59431 Medical Mutual Headquarters BACM 06-1 52,715,219 No
59551 Plaza Antonio BACM 06-1 39,000,000 No
59531 00 Xxxxxxxxx Xxxxxx BACM 06-1 23,200,000 No
59439 Mitsuwa Marketplace BACM 06-1 18,388,148 No
59271 Shawnee Mission Medical Office Buildings BACM 06-1 17,124,006 No
59433 BJ's Wholesale Club - Miami, FL BACM 06-1 9,967,787 No
59435 Peregrine Pharmaceuticals BACM 06-1 7,559,189 No
59476 Timberhills Shopping Center BACM 06-1 7,400,000 No
59595 Crossroads at Santa Xxxxx BACM 06-1 7,140,156 No
00000 Xxxxxxxx Xxxxxxxx Apartments BACM 06-1 7,090,000 No
59597 Best Buy - Ft. Lauderdale BACM 06-1 5,984,187 No
59545 Crossroads Storage BACM 06-1 5,850,000 No
59541 0000 Xxxxxxxxx Xxxxxxxxx BACM 06-1 5,667,024 No
59510 Xxxxxx Crossing BACM 06-1 5,225,000 No
59075 Best Western Franklin Park Suites BACM 06-1 4,979,199 No
58947 Stone Creek Apartments BACM 06-1 3,560,000 No
59578 Sunset Self Storage BACM 06-1 3,520,000 No
59470 Hammer Ranch BACM 06-1 2,100,000 No
59549 Staples - Atascadero BACM 06-1 1,646,297 No
20050248 Waterfront at Port Xxxxxxx BACM 06-1 110,000,000 No
20051464 Avalon Parc Apartments BACM 06-1 24,100,000 No
20050864 Palisades Trailer Bowl MHP BACM 06-1 9,450,000 No
00000 Xxxxxx Xxxxx BACM 06-1 16,000,000 No
00000 Xxxxxxx Xxxxxxx Apartments BACM 06-1 14,000,000 No
16955 The Shoppes at Coldwater BACM 06-1 10,001,788 No
16580 Holiday Inn Express-NW Portland BACM 06-1 6,425,373 No
16882 ClimaStor Xxxxxxx Road BACM 06-1 5,692,351 Xx
00000 XXX Xxxxx BACM 06-1 5,288,294 No
15417 Guardian Storage Centers (StorAmerica) BACM 06-1 4,026,880 No
14485 Xxxxxxxx Apartments BACM 06-1 3,327,414 No
00000 Xxxxxxxxxx Xxxxxxx Apartments BACM 06-1 3,183,392 No
00000 Xxxx Xxxx Apartments BACM 06-1 2,500,000 No
9000330 FDA Building BACM 06-1 9,000,000 No
Existing Additional Debt Amount Existing Additional Debt Description
---------------------------------------------------------------------------------------------------
59264 303,766,666 A-2 Pari-Passu ($131.883MM); A-3 Pari-Passu
20051519 ($131.883MM); Mezz($40MM)
20051463 Yes - $75,000,000(secured); $55,000,000 (pari passu); $20,000,000 (B-Note);
59414 $73,844,655.94(unsecured) 73,844,655.94 (unsecured)
59452 937,520 Subordinate Unsecured
59480 550,000,000 A-1 Pari-Passu ($150MM); A-3 Pari-Passu ($150MM);
20051347 Junior A Note ($200MM); Mezz ($50MM)
16394 2,000,000 Mezzanine
59639 17,400,000 Mezzanine
59431 350,000 Mezzanine
59551 165,000 Subordinate Secured
59531
59439
59271
59433
59435
59476
59595
59504
59597
59545
59541
59510
59075
58947
59578
59470
59549
20050248
20051464
20050864
15778
16374
16955
16580
16882
15109
15417
14485
14493
16259
9000330
Future Debt
Permitted? Future Debt Amount Permitted
----------------------------------------------------------------------------
59264 Yes LTV <= 75%, DSCR >= 1.25x
20051519 Yes 20,000,000
20051463 Yes Maximum of 937,520; LTV <= 90%
59414 No
59452 No
59480 No
20051347 No
16394 No
59639 Yes LTV <= 60%, DSCR >= 1.20x
59431 Yes
59551 Yes After 2 years: LTV <= 70%; DSCR >= 1.15x
59531 Yes LTV <= 80%; DSCR >= 1.15x
59439 Yes
59271 Yes After 2 years: LTV <= 90%, DSCR >= 1.10x
59433 Yes
59435 Yes
59476 Yes LTV <=65%, DSCR >=1.30x
59595 Yes After 2 years: LTV <= 65%; DSCR >= 1.30x
59504 Yes LTV <= 80%, DSCR >= 1.15x
59597 Yes LTV <= 70%; DSCR >= 1.20x
59545 Yes After 2 years: LTV <= 75%, DSCR >= 1.25x
59541 Yes LTV <=80%, DSCR >=1.20x
59510 Yes LTV <=80%, DSCR >=1.15x
59075 Yes After 23 payments: LTV <=75%, DSCR >=1.40x
58947 Yes After 3 years: LTV <= 80%, DSCR >= 1.15x
59578 Yes After 2 years: LTV <=80%, DSCR >=1.20x
59470 Yes LTV <= 80%, DSCR >= 1.25x
59549 Yes After 2 years: LTV <= 80%, DSCR >= 1.20x
20050248 Yes DSCR >= 1.10x; LTV <= 80%
20051464 Yes LTV <= 85%; DSCR >= 1.10x
20050864 Yes LTV <= 75%
15778 Yes LTV <= 80%; DSCR >= 1.20x
16374 Yes LTV <= 80%; DSCR >= 1.20x
16955 Yes DSCR >= 1.25x
16580 Yes LTV <= 70%; DSCR >= 1.50x
16882 Yes LTV <= 80%; DSCR >= 1.30x
15109 Yes
15417 Yes LTV <= 80%; DSCR >= 1.25x
14485 Yes LTV <= 80%; DSCR >= 1.20x
14493 Yes LTV <= 80%; DSCR >= 1.20x
16259 Yes LTV <= 80%; DSCR >= 1.20x
9000330 Yes LTV <= 85%, DSCR >= 1.20x
Future Debt Description % of Pool
--------------------------------------------------------------------------------------------------
59264 Mezzanine 6.5%
20051519 C-Note 2.7%
20051463 Subordinate Unsecured 0.2%
59414 7.3%
59452 0.8%
59480 0.7%
20051347 0.2%
16394 0.1%
59639 Mezzanine 2.7%
59431 Line of Credit (Unsecured Debt) 2.6%
59551 Mezzanine 1.9%
59531 Mezzanine 1.1%
59439 Line of Credit (Unsecured Debt) 0.9%
59271 Mezzanine 0.8%
59433 Line of Credit (Unsecured Debt) 0.5%
59435 Line of Credit (Unsecured Debt) 0.4%
59476 Mezzanine 0.4%
59595 Mezzanine 0.4%
59504 Subordinate Secured 0.3%
59597 Mezzanine 0.3%
59545 Mezzanine 0.3%
59541 Mezzanine 0.3%
59510 Mezzanine 0.3%
59075 Mezzanine 0.2%
58947 Mezzanine 0.2%
59578 Mezzanine/Subordinate Secured 0.2%
59470 Mezzanine 0.1%
59549 Mezzanine 0.1%
20050248 Mezzanine 5.4%
20051464 Mezzanine 1.2%
20050864 Mezzanine 0.5%
15778 Subordinate Secured 0.8%
16374 Subordinate Secured 0.7%
16955 Secured/Unsecured/Mezzanine 0.5%
16580 Subordinate Secured 0.3%
16882 Subordinate Secured 0.3%
15109 Short term unsecured loans from affiliates of the borrower 0.3%
15417 Subordinate Secured 0.2%
14485 Subordinate Secured 0.2%
14493 Subordinate Secured 0.2%
16259 Subordinate Secured 0.1%
9000330 Mezzanine 0.4%
SCHEDULE VII
Schedule of Controlling Holders
Directing Certificateholder
Anthracite Capital, Inc., at Anthracite Capital, Inc., 00 Xxxx 00xx Xxxxxx, 0xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx Xxxx and Xxxxxx Xxxxxx,
telecopy number: (000) 000-0000.
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":
--------------------------------------------------------------------------------------------------------------------------
Relevant Servicing Criteria Applicable Party(ies)
--------------------------------------------------------------------------------------------------------------------------
Reference Criteria
--------------------------------------------------------------------------------------------------------------------------
General Servicing Considerations
---------------- --------------------
---------------- --------------------
Trustee
Master Servicer
Policies and procedures are instituted to monitor any performance or other Special Servicer
1122(d)(1)(i) triggers and events of default in accordance with the transaction agreements. Primary Servicer
---------------- --------------------
Trustee
If any material servicing activities are outsourced to third parties, policies Master Servicer
and procedures are instituted to monitor the third party's performance and Special Servicer
1122(d)(1)(ii) compliance with such servicing activities. Primary Servicer
---------------- --------------------
Any requirements in the transaction agreements to maintain a back-up servicer N/A
1122(d)(1)(iii) for the mortgage loans are maintained.
---------------- --------------------
A fidelity bond and errors and omissions policy is in effect on the party Trustee
participating in the servicing function throughout the reporting period in the Master Servicer
amount of coverage required by and otherwise in accordance with the terms of the Special Servicer
1122(d)(1)(iv) transaction agreements. Primary Servicer
---------------- --------------------
Cash Collection and Administration
---------------- --------------------
Payments on mortgage loans are deposited into the appropriate custodial bank Trustee
accounts and related bank clearing accounts no more than two business days Master Servicer
following receipt, or such other number of days specified in the transaction Special Servicer
1122(d)(2)(i) agreements. Primary Servicer
---------------- --------------------
Disbursements made via wire transfer on behalf of an obligor or to an investor Trustee
1122(d)(2)(ii) are made only by authorized personnel.
---------------- --------------------
Advances of funds or guarantees regarding collections, cash flows or Master Servicer
distributions, and any interest or other fees charged for such advances, are Special Servicer
1122(d)(2)(iii) made, reviewed and approved as specified in the transaction agreements. Trustee
---------------- --------------------
The related accounts for the transaction, such as cash reserve accounts or Trustee
accounts established as a form of overcollateralization, are separately Master Servicer
maintained (e.g., with respect to commingling of cash) as set forth in the Special Servicer
1122(d)(2)(iv) transaction agreements. Primary Servicer
---------------- --------------------
Each custodial account is maintained at a federally insured depository Trustee
institution as set forth in the transaction agreements. For purposes of this Master Servicer
criterion, "federally insured depository institution" with respect to a foreign Special Servicer
financial institution means a foreign financial institution that meets the Primary Servicer
1122(d)(2)(v) requirements of Rule 13k-1(b)(1) of the Securities Exchange Act.
---------------- --------------------
Master Servicer
Special Servicer
Trustee
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent unauthorized access. Primary Servicer
---------------- --------------------
Reconciliations are prepared on a monthly basis for all asset-backed securities Trustee
related bank accounts, including custodial accounts and related bank clearing Master Servicer
accounts. These reconciliations are (A) mathematically accurate; (B) prepared Special Servicer
within 30 calendar days after the bank statement cutoff date, or such other Primary Servicer
number of days specified in the 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
1122(d)(2)(vii) number of days specified in the transaction agreements.
---------------- --------------------
Investor Remittances and Reporting
---------------- --------------------
Reports to investors, including those to be filed with the Commission, are Trustee
maintained in 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
1122(d)(3)(i) mortgage loans serviced by the Servicer.
---------------- --------------------
Amounts due to investors are allocated and remitted in accordance with Trustee
timeframes, distribution priority and other terms set forth in the transaction
1122(d)(3)(ii) agreements.
---------------- --------------------
Disbursements made to an investor are posted within two business days to the Trustee
Servicer's investor records, or such other number of days specified in the
1122(d)(3)(iii) transaction agreements.
---------------- --------------------
Amounts remitted to investors per the investor reports agree with cancelled Trustee
1122(d)(3)(iv) checks, or other form of payment, or custodial bank statements.
---------------- --------------------
Pool Asset Administration
---------------- --------------------
Trustee
Master Servicer
Collateral or security on mortgage loans is maintained as required by the Special Servicer
1122(d)(4)(i) transaction agreements or related mortgage loan documents. Primary Servicer
---------------- --------------------
Mortgage loan and related documents are safeguarded as required by the Trustee
1122(d)(4)(ii) transaction agreements.
---------------- --------------------
Trustee
Any additions, removals or substitutions to the asset pool are made, reviewed Master Servicer
and approved in accordance with any conditions or requirements in the Special Servicer
1122(d)(4)(iii) transaction agreements. Primary Servicer
---------------- --------------------
Payments on mortgage loans, including any payoffs, made in accordance with the Master Servicer
related mortgage loan documents are posted to the Servicer's obligor records Special Servicer
maintained no more than two business days after receipt, or such other number of Primary Servicer
days specified in the transaction agreements, and allocated to principal,
interest or other items (e.g., escrow) in accordance with the related mortgage
1122(d)(4)(iv) loan documents.
---------------- --------------------
The Servicer's records regarding the mortgage loans agree with the Servicer's Master Servicer
1122(d)(4)(v) records with respect to an obligor's unpaid principal balance. Primary Servicer
---------------- --------------------
Changes with respect to the terms or status of an obligor's mortgage loans Master Servicer
(e.g., loan modifications or re-agings) are made, reviewed and approved by Special Servicer
authorized personnel in accordance with the transaction agreements and related Primary Servicer
1122(d)(4)(vi) pool asset documents.
---------------- --------------------
Loss mitigation or recovery actions (e.g., forbearance plans, modifications and Master Servicer
deeds in lieu of foreclosure, foreclosures and repossessions, as applicable) are Special Servicer
initiated, conducted and concluded in accordance with the timeframes or other
1122(d)(4)(vii) requirements established by the transaction agreements.
---------------- --------------------
Records documenting collection efforts are maintained during the period a Master Servicer
mortgage loan is delinquent in accordance with the transaction agreements. Such Special Servicer
records are maintained on at least a monthly basis, or such other period Primary Servicer
specified in the transaction agreements, 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
1122(d)(4)(viii) temporary (e.g., illness or unemployment).
---------------- --------------------
Adjustments to interest rates or rates of return for mortgage loans with Master Servicer
1122(d)(4)(ix) variable rates are computed based on the related mortgage loan documents. Primary Servicer
---------------- --------------------
Regarding any funds held in trust for an obligor (such as escrow accounts): (A) Master Servicer
such funds are analyzed, in accordance with the obligor's mortgage loan Primary Servicer
documents, on at least an annual basis, or such other period specified in the
transaction agreements; (B) interest on such funds is paid, or credited, to
obligors in accordance with applicable mortgage loan documents and state laws;
and (C) such funds are returned to the obligor within 30 calendar days of full
repayment of the related mortgage loans, or such other number of days specified
1122(d)(4)(x) in the transaction agreements.
---------------- --------------------
Payments made on behalf of an obligor (such as tax or insurance payments) are Master Servicer
made on or before the related penalty or expiration dates, as indicated on the Primary Servicer
appropriate bills or notices for such payments, provided that such support has
been received by the servicer at least 30 calendar days prior to these dates, or
1122(d)(4)(xi) such other number of days specified in the transaction agreements.
---------------- --------------------
Any late payment penalties in connection with any payment to be made on behalf Master Servicer
of an obligor are paid from the servicer's funds and not charged to the obligor, Primary Servicer
1122(d)(4)(xii) unless the late payment was due to the obligor's error or omission.
---------------- --------------------
Disbursements made on behalf of an obligor are posted within two business days Master Servicer
to the obligor's records maintained by the servicer, or such other number of Primary Servicer
1122(d)(4)(xiii) days specified in the transaction agreements.
---------------- --------------------
Delinquencies, charge-offs and uncollectible accounts are recognized and Master Servicer
1122(d)(4)(xiv) recorded in accordance with the transaction agreements. Primary Servicer
---------------- --------------------
Any external enhancement or other support, identified in Item 1114(a)(1) through N/A
(3) or Item 1115 of Regulation AB, is maintained as set forth in the transaction
1122(d)(4)(xv) 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 knowledge (and in the case of financial statements required to be provided
in connection with Item 6 below, possession) of such information (other than
information as to itself).
---------------------------------------------------------------------------------------------------------------------
Item on Form 10-D Party Responsible
---------------------------------------------------------------------------------------------------------------------
Item 1A: Distribution and Pool Performance Information: o Master Servicer
o Item 1121(a)(13) of Regulation AB o Trustee
---------------------------------------------------------------------------------------------------------------------
Item 1B: Distribution and Pool Performance Information: o Trustee
o Item 1121 (a)(14) of Regulation AB o Depositor
---------------------------------------------------------------------------------------------------------------------
Item 2: Legal Proceedings: o Master Servicer (as to itself)
o Item 1117 of Regulation AB o Special Servicer (as to itself)
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
o Each Seller as sponsor (as defined in Regulation AB)
o Originators under Item 1110 of Regulation AB
o Party under Item 1100(d)(1) of Regulation AB
---------------------------------------------------------------------------------------------------------------------
Item 3: Sale of Securities and Use of Proceeds o Depositor
---------------------------------------------------------------------------------------------------------------------
Item 4: Defaults Upon Senior Securities o Trustee
---------------------------------------------------------------------------------------------------------------------
Item 5: Submission of Matters to a Vote of Security o Trustee
Holders
---------------------------------------------------------------------------------------------------------------------
Item 6: Significant Obligors of Pool Assets o Depositor
o Sponsor
o Mortgage Loan Seller
o Master Servicer
o Primary Servicer (as to loans serviced by it)
---------------------------------------------------------------------------------------------------------------------
Item 7: Significant Enhancement Provider Information o Depositor
---------------------------------------------------------------------------------------------------------------------
Item 8: Other Information o Trustee
o Any other party responsible for disclosure items on
Form 8-K
---------------------------------------------------------------------------------------------------------------------
Item 9: Exhibits o Depositor
o Master Servicer
o Special 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 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
o Any other party responsible for disclosure items on
Form 8-K
-------------------------------------------------------------------------------------------------------------------------
Item 15: Exhibits, Financial Statement Schedules o Trustee
o Depositor
-------------------------------------------------------------------------------------------------------------------------
Additional Item: o Master Servicer (as to itself)
o Special Servicer (as to itself)
Disclosure per Item 1117 of Regulation AB 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
o Each Seller as sponsor (as defined in Regulation AB)
o Originators under Item 1110 of Regulation AB
o Party under Item 1100(d)(1) of Regulation AB
-------------------------------------------------------------------------------------------------------------------------
Additional Item: o Master Servicer (as to itself)
Disclosure per Item 1119 of Regulation AB o Special Servicer (as to itself)
o Trustee (as to itself)
o Depositor (as to itself)
o Primary Servicer (as to itself)
o Trustee/Master Servicer/Depositor/Special Servicer as
to the Trust
o Each Seller as sponsors (as defined in Regulation AB)
o Originators under Item 1110 of Regulation AB
o Party under Item 1100(d)(1) of Regulation AB
-------------------------------------------------------------------------------------------------------------------------
Additional Item: o Depositor
Disclosure per Item 1112(b) of Regulation AB o Each Seller as sponsor (as defined in Regulation AB)
o Master Servicer
-------------------------------------------------------------------------------------------------------------------------
Additional Item: o Depositor
Disclosure per Items 1114(b)(2) and 1115(b) of o Trustee
Regulation AB o Master Servicer
-------------------------------------------------------------------------------------------------------------------------
SCHEDULE XI
Form 8-K Disclosure Information
The parties identified in the "Party Responsible" column are obligated pursuant
to Section 11.7 of the Pooling and Servicing Agreement to report to the
Depositor and the Trustee the occurrence of any event described in the
corresponding Form 8-K Item described in the "Item on Form 8-K" column to the
extent such party has knowledge of such information (other than information as
to itself).
-------------------------------------------------------------------------------------------------------------
Item on Form 8-K Party Responsible
-------------------------------------------------------------------------------------------------------------
Item 1.01- Entry into a Material Definitive Agreement o Trustee/Master Servicer/Depositor/Special
Servicer as to the Trust
-------------------------------------------------------------------------------------------------------------
Item 1.02- Termination of a Material Definitive Agreement o Trustee/Master Servicer/Depositor/Special
Servicer as to the Trust
-------------------------------------------------------------------------------------------------------------
Item 1.03- Bankruptcy or Receivership o Depositor
-------------------------------------------------------------------------------------------------------------
Item 2.04- Triggering Events that Accelerate or Increase o Trustee
a Direct Financial Obligation or an Obligation under an
Off-Balance Sheet Arrangement
-------------------------------------------------------------------------------------------------------------
Item 3.03- Material Modification to Rights of Security
Holders o Trustee
-------------------------------------------------------------------------------------------------------------
Item 5.03- Amendments of Articles of Incorporation or o Depositor
Bylaws; Change of Fiscal Year
-------------------------------------------------------------------------------------------------------------
Item 6.01- ABS Informational and Computational Material o Depositor
-------------------------------------------------------------------------------------------------------------
Item 6.02- Change of Servicer or Trustee o Master Servicer
o Special Servicer
o Primary Servicer
o Trustee
o Depositor
-------------------------------------------------------------------------------------------------------------
Item 6.03- Change in Credit Enhancement or External o Depositor
Support o Trustee
-------------------------------------------------------------------------------------------------------------
Item 6.04- Failure to Make a Required Distribution o Trustee
-------------------------------------------------------------------------------------------------------------
Item 6.05- Securities Act Updating Disclosure o Depositor
-------------------------------------------------------------------------------------------------------------
Item 7.01- Regulation FD Disclosure o Depositor
-------------------------------------------------------------------------------------------------------------
Item 8.01 o Depositor
-------------------------------------------------------------------------------------------------------------
Item 9.01 o Depositor
o Master Servicer
o Special Servicer
o Trustee
o Primary Servicer
-------------------------------------------------------------------------------------------------------------
