EXHIBIT 99.1
BANK OF AMERICA, NATIONAL ASSOCIATION,
Master Servicer
and
WACHOVIA BANK, NATIONAL ASSOCIATION,
Sub-Servicer
SUB-SERVICING AGREEMENT
Dated as of October 1, ▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ Commercial Mortgage Inc.
Commercial Mortgage Pass-Through Certificates
Series 2006-5
TABLE OF CONTENTS
ARTICLE I DEFINITIONS...............................................
Section 1.01 Defined Terms.........................................
ARTICLE II SERVICER'S ENGAGEMENT OF SUB-SERVICER
TO PERFORM SERVICING RESPONSIBILITIES.....................
Section 2.01 Contract for Servicing; Possession of Mortgage
Loan Documents........................................
Section 2.02 Notice of Breach of Representations and Warranties....
ARTICLE III SERVICING OF THE MORTGAGE LOANS...........................
Section 3.01 Sub-Servicer to Service...............................
Section 3.02 Merger or Consolidation of the Sub-Servicer...........
Section 3.03 Limitation on Liability of the Sub-Servicer and
Others................................................
Section 3.04 Sub-Servicer Not to Resign............................
Section 3.05 No Transfer or Assignment of Servicing................
Section 3.06 Indemnification.......................................
ARTICLE IV DEFAULT...................................................
Section 4.01 Events of Default.....................................
Section 4.02 Waiver of Defaults....................................
Section 4.03 Other Remedies of Master Servicer.....................
ARTICLE V TERMINATION...............................................
Section 5.01 Termination...........................................
Section 5.02 Termination With Cause................................
Section 5.03 Reserved..............................................
Section 5.04 Termination of Duties with Respect to Specially
Serviced Mortgage Loans...............................
ARTICLE VI MISCELLANEOUS.............................................
Section 6.01 Successor to the Sub-Servicer.........................
Section 6.02 Financial Statements..................................
Section 6.03 Closing...............................................
Section 6.04 Closing Documents.....................................
Section 6.05 Notices...............................................
Section 6.06 Severability Clause...................................
Section 6.07 Counterparts..........................................
Section 6.08 Governing Law.........................................
Section 6.09 Protection of Confidential Information................
Section 6.10 Intention of the Parties..............................
Section 6.11 Third Party Beneficiary...............................
Section 6.12 Successors and Assigns; Assignment of Agreement.......
Section 6.13 Waivers...............................................
Section 6.14 Exhibits..............................................
Section 6.15 General Interpretive Principles.......................
Section 6.16 Complete Agreement....................................
Section 6.17 Further Agreement.....................................
Section 6.18 Amendments............................................
EXHIBIT A MORTGAGE LOAN SCHEDULE......................................
EXHIBIT B SUB-SERVICER'S OFFICER'S CERTIFICATE........................
EXHIBIT 5 SUB-SERVICER'S OFFICER'S CERTIFICATE........................
EXHIBIT C POOLING AND SERVICING AGREEMENT.............................
EXHIBIT D RESERVED....................................................
EXHIBIT E FORM OF QUARTERLY SERVICING CERTIFICATION...................
EXHIBIT F FORM OF ACCOUNT CERTIFICATION...............................
EXHIBIT G FORM OF COLLECTION REPORT...................................
EXHIBIT H FORM OF CERTIFICATE OF INSURANCE............................
EXHIBIT I FORM OF ADDITIONAL REPORTS..................................
EXHIBIT J FORM OF MONTHLY SERVICING ACCOUNTS CERTIFICATION............
This is a Sub-Servicing Agreement (the "Agreement"), dated as of
October 1, 2006, by and between BANK OF AMERICA, NATIONAL ASSOCIATION, having an
office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇, and its successors and assigns (the "Master Servicer"), and WACHOVIA
BANK, NATIONAL ASSOCIATION, having an office at NC 1075, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇-▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, and its successors and assigns (the
"Sub-Servicer").
W I T N E S S E T H:
WHEREAS, BANC OF AMERICA COMMERCIAL MORTGAGE INC. (the "Depositor"),
LASALLE BANK NATIONAL ASSOCIATION (the "Trustee") MIDLAND LOAN SERVICES, INC.
(the "Special Servicer") and the Master Servicer have entered into that certain
Pooling and Servicing Agreement dated as of October 1, 2006, as amended,
modified and restated from time to time (the "Pooling and Servicing Agreement"),
whereby the Master Servicer shall service certain mortgage loans on behalf of
the Trustee;
WHEREAS, Section 3.22 of the Pooling and Servicing Agreement permits
the Master Servicer to enter into agreements with Sub-Servicers for the
sub-servicing of the Mortgage Loans; and
WHEREAS, the Master Servicer desires to enter into a contract with
the Sub-Servicer whereby the Sub-Servicer shall service certain of such mortgage
loans listed on Exhibit A (the "Mortgage Loan Schedule") attached hereto (the
"Mortgage Loans") on behalf of the Master Servicer.
NOW, THEREFORE, in consideration of the mutual agreements
hereinafter set forth, and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the Master Servicer and
the Sub-Servicer hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms.
Unless otherwise specified in this Agreement, all capitalized terms
not otherwise defined herein shall have the meanings set forth in the Pooling
and Servicing Agreement. As used herein, the following terms have the meanings
assigned to them in this Section 1.01:
"Collection Report" shall mean the monthly report prepared by the
Sub-Servicer setting forth, with respect to each Mortgage Loan and the most
recently ended Collection Period prior to the due date of such report, the
information described on Exhibit G attached hereto.
"Corrected Mortgage Loan" shall have the meaning given to "Corrected
Loan" in the Pooling and Servicing Agreement.
"Incorporated Sections" shall have the meaning set forth in Section
3.01(b) of this Agreement.
"Mortgage Loans" shall have the meaning specified in the recitals
hereto.
"Mortgage Loan Schedule" shall have the meaning specified in the
recitals hereto.
"References Modification" shall have the meaning set forth in
Section 3.01(b) of this Agreement.
"Specially Serviced Mortgage Loan" shall have the meaning given to
"Specially Serviced Loan" in the Pooling and Servicing Agreement.
"Sub-Servicer Remittance Amount" shall mean, with respect to any
date, an amount equal to, without duplication, (a) the sum of (i) the aggregate
of the amounts on deposit in the Sub-Servicer Custodial Account (as defined
herein) as of such date, (ii) if and to the extent not included in the amount
referred to in subclause (a)(i), the aggregate amount transferred from the REO
Account (if established) to the Sub-Servicer as of such date to the extent not
previously remitted to the Master Servicer, (iii) the aggregate of all other
amounts received with respect to the Mortgage Loans as of such date to the
extent not previously remitted to the Master Servicer and (iv) the aggregate
amount of Prepayment Interest Shortfalls deposited by the Sub-Servicer in the
Sub-Servicer Custodial Account as required by Section 3.19(e) of the Pooling and
Servicing Agreement as incorporated herein pursuant to Section 3.01(c)(29) of
this Agreement, to the extent not previously remitted to the Master Servicer,
net of (b) the portion of the amount described in subclause (a) of this
definition that represents one or more of the following: (i) Escrow Payments or
(ii) any amounts that the Sub-Servicer is entitled to retain as compensation
pursuant to Section 3.11 of the Pooling and Servicing Agreement as incorporated
herein pursuant to Section 3.01(c)(20) of this Agreement.
"Sub-Servicer Remittance Date" shall mean the second Business Day
after each Determination Date.
"Sub-Servicer Reporting Date" shall mean the third Business Day
preceding such Distribution Date.
"Sub-Servicing Fee" shall mean, with respect to each Mortgage Loan
and REO Serviced Loan, the fee payable to the Sub-Servicer pursuant to Section
3.01(c)(20) of this Agreement.
"Sub-Servicing Fee Rate" shall mean, with respect to each Mortgage
Loan, the rate that corresponds to such Mortgage Loan set forth on Exhibit A
hereto under the heading "Sub-Servicing Fee."
ARTICLE II
SERVICER'S ENGAGEMENT OF SUB-SERVICER
TO PERFORM SERVICING RESPONSIBILITIES
Section 2.01 Contract for Servicing; Possession of Mortgage Loan
Documents.
The Master Servicer, by execution and delivery of this Agreement,
does hereby contract with the Sub-Servicer, subject to the terms of this
Agreement, for the servicing of the Mortgage Loans. On and after the Closing
Date, the Sub-Servicer shall hold any portion of the Mortgage File (including
without limitation, any original letter of credit) in the possession of the
Sub-Servicer in trust by the Sub-Servicer, on behalf of the Master Servicer for
the benefit of the Trustee. The Sub-Servicer's possession of any portion of the
Mortgage File shall be at the will of the Master Servicer and the Trustee for
the sole purpose of facilitating the servicing or the supervision of servicing
of the related Mortgage Loan pursuant to this Agreement, and such retention and
possession by the Sub-Servicer shall be in a custodial capacity only. Any
portion of the Mortgage File retained by the Sub-Servicer shall be identified to
reflect clearly the ownership of the related Mortgage Loan by the Trustee. The
Sub-Servicer shall release from its custody any Mortgage File retained by it
only in accordance with this Agreement and the Pooling and Servicing Agreement.
Within 20 days following the Closing Date, the Sub-Servicer shall provide to the
Master Servicer a certification executed by a duly authorized officer of the
Sub-Servicer, certifying to the Master Servicer as to the original letters of
credit held by the Sub-Servicer and identifying the letters of credit, the
amounts of the letters of credit and the Mortgage Loans to which they relate.
Section 2.02 Notice of Breach of Representations and Warranties.
Provided that the Sub-Servicer has received a copy of such Mortgage
Loan Purchase and Sale Agreement, the Sub-Servicer shall promptly notify the
Master Servicer upon becoming aware of any breach of any representations and
warranties contained in the Mortgage Loan Purchase and Sale Agreement by and
between the Depositor and ▇▇▇▇▇▇▇'▇ Capital Real Estate Inc., dated as of the
Closing Date.
ARTICLE III
SERVICING OF THE MORTGAGE LOANS
Section 3.01 Sub-Servicer to Service.
(a) The Sub-Servicer, as an independent contractor, shall service
and administer the Mortgage Loans in a manner consistent with the Servicing
Standard under the Pooling and Servicing Agreement.
(b) The Sub-Servicer shall perform, on behalf of the Master
Servicer, all of the obligations of the Master Servicer (with respect to the
Mortgage Loans subject to this Agreement) as set forth in those sections of the
Pooling and Servicing Agreement specifically incorporated herein pursuant to
Section 3.01(c) of this Agreement (the "Incorporated Sections"), as modified by
Section 3.01(c) of this Agreement, and the Master Servicer shall have the same
rights with respect to the Sub-Servicer that the Trustee, the Depositor, the
Underwriters, the Rating Agencies and the Certificateholders (including, without
limitation, the right of the Special Servicer to direct the Master Servicer
during certain periods) have with respect to the Master Servicer under the
Pooling and Servicing Agreement to the extent that the Sub-Servicer is acting on
behalf of the Master Servicer hereunder and except as otherwise set forth
herein. Without limiting the foregoing, and subject to Section 3.21 of the
Pooling and Servicing Agreement as modified herein, the Sub-Servicer shall
service and administer all of the Mortgage Loans that are not Specially Serviced
Mortgage Loans; provided, however, that the Sub-Servicer shall continue to
receive payments (and provide notice to the Master Servicer of such payments)
and prepare all reports to the Trustee required from the Master Servicer under
the Pooling and Servicing Agreement with respect to any Specially Serviced
Mortgage Loans and REO Properties (and the related REO Serviced Loans) to the
extent such provisions of the Pooling and Servicing Agreement are incorporated
herein pursuant to Section 3.01(c) of this Agreement, and further to render such
incidental services with respect to any Specially Serviced Mortgage Loans and
REO Properties as are specifically provided for under Section 3.01(c) of this
Agreement provided, further, however, that the Sub-Servicer shall not be liable
for its failure to comply with such duties insofar as such failure results from
a failure by the Special Servicer to provide sufficient information to the
Sub-Servicer to comply with such duties or the failure by the Special Servicer
to otherwise comply with its obligations under the Pooling and Servicing
Agreement. All references herein to the respective duties of the Sub-Servicer
and the Special Servicer, and to the areas in which they may exercise
discretion, shall be subject to Section 3.21 of the Pooling and Servicing
Agreement, as modified herein and to the Special Servicer's right to service
Specially Serviced Mortgage Loans. Except as otherwise set forth below, for
purposes of this Agreement, (i) references to the Trustee, the Depositor, the
Underwriters, the Rating Agencies and the Certificateholders in the Incorporated
Sections (and in the defined terms used therein) shall be deemed to be
references to the Master Servicer hereunder, (ii) references to the Master
Servicer in the Incorporated Sections (and in the defined terms used therein)
shall be deemed to be references to the Sub-Servicer hereunder, and (iii)
references to the Mortgage Loans (each as defined in the Pooling and Servicing
Agreement) in the Incorporated Sections and in the defined terms referenced in
the Incorporated Sections shall be deemed to be references to the Mortgage Loans
(such modification of the Incorporated Sections pursuant to clauses (i), (ii)
and (iii) of this sentence shall be referred to herein as the "References
Modification"). In each case where the Master Servicer is given any power to act
under the provisions of the Incorporated Sections, such power is hereby
delegated to the Sub-Servicer to the extent necessary to perform its obligations
under this Agreement.
(c) The following Sections of the Pooling and Servicing Agreement,
unless otherwise provided in this Section 3.01(c) of this Agreement, are hereby
incorporated herein by reference as if fully set forth herein, and, for purposes
of this Agreement, in addition to the References Modification, are hereby
further modified as set forth below:
(1) Section 2.05(a) and (b). Section 2.05(a)(ix) is not incorporated
herein. The Sub-Servicer is authorized to transact business in each state
in which a Mortgaged Property is located, if and to the extent required by
applicable law. The Sub-Servicer is an approved conventional
seller/servicer of mortgage loans for ▇▇▇▇▇▇▇ Mac, ▇▇▇▇▇▇ ▇▇▇ or
HUD-Approved servicer. Each insurance policy and fidelity bond referenced
in Section 3.07(c) of the Pooling and Servicing Agreement names the Master
Servicer as an additional insured and loss payee.
(2) Section 3.01(a), (b) and (c). Without limiting the generality of
the obligations of the Sub-Servicer hereunder, the Sub-Servicer shall
monitor and certify on a quarterly basis starting for the quarter ending
December of 2006, within 30 days of the end of such quarter the
information on each Mortgage Loan as required by, and in the form of,
Exhibit E attached hereto, pursuant to Section 3.01(c)(38) of this
Agreement. In addition, without limiting the generality of the foregoing,
the Sub-Servicer shall take all necessary action to continue all UCC
Financing Statements in favor of the originator of each Mortgage Loan or
in favor of any assignee prior to the expiration of such UCC Financing
Statements.
(3) Section 3.02(a) and (b). The Sub-Servicer shall send the notice
regarding Balloon Payments required under Section 3.02 with a copy to the
Master Servicer.
(4) Section 3.03(a). The creation of any Servicing Account shall be
evidenced by a certification in the form of Exhibit F attached hereto and
a copy of such certification shall be furnished to the Master Servicer on
or prior to the Closing Date and thereafter to the Master Servicer upon
any transfer of the Servicing Account.
(5) Section 3.03(b). Without limiting the generality of the
obligations of the Sub-Servicer hereunder, the Sub-Servicer shall monitor
and certify to information on each Mortgage Loan with respect to taxes,
insurance premiums, assessments, ground rents and other similar items on a
quarterly basis starting for the quarter ending in December of 2006,
within 30 days of the end of such quarter as required by, and in the form
of, Exhibit E attached hereto, pursuant to Section 3.01(c)(38) of this
Agreement. The Sub-Servicer shall not be obligated to make any Servicing
Advances, except as described in the following sentence. The Sub-Servicer
shall give the Master Servicer not less than five Business Days' notice
before the date on which the Master Servicer is required to make any
Servicing Advance with respect to any Mortgage Loan; provided, however,
that, with respect to any Servicing Advance required to be made on an
urgent or emergency basis such that the Sub-Servicer is unable to provide
the Master Servicer with sufficient notice to enable the Master Servicer
to make such Servicing Advance, the Sub-Servicer shall make such Servicing
Advance and the Master Servicer shall reimburse the Sub-Servicer for such
Servicing Advance within five Business Days of receipt of written request
therefor and interest thereon at the Reimbursement Rate without regard to
the Master Servicer's determination of recoverability. In addition, the
Sub-Servicer shall provide the Master Servicer with such information in
its possession as the Master Servicer may reasonably request to enable the
Master Servicer to determine whether a requested Servicing Advance would
constitute a Nonrecoverable Servicing Advance.
(6) Section 3.03(d) and (e). The creation of any Reserve Account
shall be evidenced by a certification in the form of Exhibit F attached
hereto and a copy of such certification shall be furnished to the Master
Servicer upon the creation of and any transfer of the Reserve Account. The
Sub-Servicer shall request the written confirmations required by the first
two sentences of Section 3.03(e). In the final sentence of Section 3.03(e)
the Sub-Servicer shall send the information required to be sent by the
Master Servicer to the Special Servicer, with a copy to the Master
Servicer.
(7) Section 3.04(a). The Sub-Servicer shall establish a custodial
account (hereinafter the "Sub-Servicer Custodial Account"), meeting all of
the requirements of the Certificate Account, and references to the
Certificate Account shall be references to such Sub-Servicer Custodial
Account. The creation of any Sub-Servicer Custodial Account shall be
evidenced by a certification in the form of Exhibit F attached hereto and
a copy of such certification shall be furnished to the Master Servicer on
or prior to the Closing Date and thereafter to the Master Servicer upon
any transfer of the Sub-Servicer Custodial Account. For purposes of the
last paragraph of Section 3.04(a) of the Pooling and Servicing Agreement,
the Master Servicer shall direct the Special Servicer to make payment of
amounts referenced therein directly to the Sub-Servicer for deposit in the
Sub-Servicer Custodial Account.
(8) Section 3.04(b). References to the Certificate Account shall be
references to the Sub-Servicer Custodial Account, references to the
Distribution Account shall be references to the Certificate Account,
references to the Master Servicer Remittance Date shall be references to
the Sub-Servicer Remittance Date and references to the Master Servicer
Remittance Amount shall be references to the Sub-Servicer Remittance
Amount. Each remittance required to be made to the Master Servicer on the
Sub-Servicer Remittance Date shall be made by wire transfer and shall be
made by 2:00 p.m. Charlotte, North Carolina time on such date. Each month,
by 2:00 p.m. Charlotte, North Carolina time on the first Business Day
after receipt of any Sub-Servicer Remittance Amount between the
Sub-Servicer Remittance Date and the Distribution Date, the Sub-Servicer
shall forward to the Master Servicer by wire transfer the Sub-Servicer
Remittance Amount for such date. Each month by 2:00 p.m. Charlotte, North
Carolina time, on the first Business Day after receipt of any amounts
which constitute delinquent payments on the Mortgage Loans that the
Sub-Servicer is not required to remit to the Master Servicer pursuant to
the previous sentence, the Sub-Servicer shall forward to the Master
Servicer by wire transfer all such amounts collected by the Sub-Servicer
and not previously remitted to the Master Servicer. Section 3.01(c)(38) of
this Agreement sets forth certain reporting requirements with respect to
such remittances. Subsections (i) and (iii) of Section 3.04(b) of the
Pooling and Servicing Agreement are not incorporated herein. If any check
or other form of payment received by the Sub-Servicer with respect to a
Mortgage Loan is returned for insufficient funds and the Sub-Servicer has
previously remitted cash in the amount of such payment to the Master
Servicer, the Master Servicer shall reimburse the Sub-Servicer for such
amount within five Business Days after the Master Servicer receives
notification from the Sub-Servicer of such insufficient funds.
(9) Section 3.04(d). The Sub-Servicer shall only invest funds held
in the Sub-Servicer Custodial Account in Permitted Investments. The
Sub-Servicer shall give notice to the Master Servicer of the location of
the Sub-Servicer Custodial Account as of the Closing Date and of the new
location of the Sub-Servicer Custodial Account prior to any change
thereof.
(10) Section 3.05 is not incorporated herein. The Sub-Servicer may,
from time to time, make withdrawals from the Sub-Servicer Custodial
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 Master Servicer for deposit in the
Certificate Account the amounts required to be so deposited pursuant
to Section 3.01(c)(8) of this Agreement;
(ii) to pay to itself earned and unpaid Sub-Servicing Fees in
respect of each Mortgage Loan and REO Serviced Loan (exclusive of
each Mortgage Loan or REO Serviced Loan included in a Whole Loan),
the Sub-Servicer's right to payment pursuant to this clause (ii)
with respect to any Mortgage Loan or REO Serviced Loan (exclusive of
each Mortgage Loan or REO Serviced Loan included in a Whole Loan)
being payable from, and limited to, amounts received on or in
respect of such Mortgage Loan (whether in the form of payments,
Liquidation Proceeds, Insurance Proceeds or Condemnation Proceeds)
or such REO Serviced Loan (whether in the form of REO Revenues,
Liquidation Proceeds, Insurance Proceeds or Condemnation Proceeds)
that are allocable as a recovery of interest thereon;
(iii) to pay itself, as additional servicing compensation in
accordance with Section 3.11(b) of the Pooling and Servicing
Agreement, interest and investment income earned in respect of
amounts held in the Sub-Servicer Custodial Account as provided in
Section 3.01(c) (12) of this Agreement, but only to the extent of
the Net Investment Earnings with respect to the Sub-Servicer
Custodial Account for any Collection Period;
(iv) to clear and terminate the Sub-Servicer Custodial Account
at the termination of this Agreement pursuant to Section 9.01 of the
Pooling and Servicing Agreement, as modified herein;
(v) any amounts deposited in the Sub-Servicer Custodial
Account in error;
(vi) to pay itself, any amounts payable pursuant to Section
6.03, of the Pooling and Servicing Agreement, but only to the extent
allowed by the Pooling and Servicing Agreement and Section 3.03
hereof; and
(vii) to reimburse itself, for any unreimbursed Servicing
Advance made pursuant to Section 3.05(c)(5), if not reimbursed by
the Master Servicer within the time required by Section 3.05(c)(5);
The Sub-Servicer shall keep and maintain separate accounting
records, on a loan-by-loan and property-by-property basis when appropriate, in
connection with any withdrawal from the Sub-Servicer Custodial Account pursuant
to clauses (ii) and (iii) above.
(11) Reserved.
(12) Section 3.06(a), (b) and (c) are not incorporated herein. The
Sub-Servicer may invest funds in the Sub-Servicer Custodial Account and
any Servicing Account or Reserve Account on the same terms as the Master
Servicer may invest funds in the Certificate Account and any Servicing
Account or Reserve Account, and subject to the same rights, restrictions
and obligations regarding maturity dates, gains, losses, withdrawals,
possession of Permitted Investments and Permitted Investments payable on
demand. Without limiting the generality of the foregoing, (A) any
investment of funds in the Sub-Servicer Custodial Account or a Servicing
Account or Reserve Account shall be made in the name of the Trustee (in
its capacity as such) and (B) the Sub-Servicer, on behalf of the Trustee
for the benefit of the Certificateholders, shall maintain continuous
physical possession of any Permitted Investment that is either (i) a
"certificated security", as such term is defined in the UCC (such that the
Trustee shall have control pursuant to 8-106 of the UCC) or (ii) other
property in which a secured party may perfect its security interest by
physical possession under the UCC or any other applicable law, and (C) in
the case of any Permitted Investment held in the form of a "security
entitlement" (within the meaning of Section 8-102(a)(17) of the UCC), the
Sub-Servicer shall take or cause to be taken such action as the Master
Servicer or Trustee deems reasonably necessary to cause the Trustee to
have control over such security entitlement.
(13) Section 3.07(a). References to the Certificate Account shall be
references to the Sub-Servicer Custodial Account. All insurance policies
caused to be maintained by the Sub-Servicer hereunder shall also name the
Master Servicer as additional insured and loss payee; Master Servicer
shall designate in writing to the Sub-Servicer how its name shall appear.
Within thirty (30) days after the execution date of this agreement, the
Sub-Servicer shall forward to the Master Servicer a fully completed
certificate of insurance in the form of Exhibit H attached hereto. Without
limiting the generality of the obligations of the Sub-Servicer hereunder,
the Sub-Servicer shall monitor and certify to the status of insurance
policies relating to the Mortgage Loans on a quarterly basis starting for
the quarter ending in December of 2006, within 30 days of the end of such
quarter as required by, and in the form of, Exhibit E attached hereto,
pursuant to Section 3.01(c)(38) of this Agreement.
(14) Section 3.07(b). References to the Certificate Account shall be
references to the Sub-Servicer Custodial Account.
(15) Section 3.07(c). The fidelity bond and insurance policies
required hereunder shall also name the Master Servicer as additional
insured and loss payee; Master Servicer shall designate in writing to
Sub-Servicer how its name shall appear. The Sub-Servicer shall provide a
certificate of insurance to the Master Servicer evidencing fidelity bond
and insurance coverage required hereunder on or before March 31 of each
year, beginning March 31, 2007. The Master Servicer shall make all
determinations with respect to terrorism insurance matters required to be
made under Section 3.07 of the Pooling and Servicing Agreement, and the
Sub-Servicer shall reasonably cooperate with the Master Servicer in
connection therewith.
(16) Reserved.
(17) Section 3.08. References to the Master Servicer shall not be
deemed to be references to the Sub-Servicer for purposes of Section
3.08(a) and (b). The Sub-Servicer will not approve or consent to an
assumption of a Mortgage Loan or a transfer of interest in the Mortgagor
or waive any restrictions contained in the related Mortgage on transfer of
an interest in the related Mortgaged Property or Mortgagor or on
subordinate financing, without the prior written consent of the Master
Servicer. The Sub-Servicer shall forward all assumptions or transfer of
interest requests to the Master Servicer (which will forward such requests
to the Special Servicer), along with any information reasonably requested
by the Master Servicer for the analysis of such requests and the
Sub-Servicer shall also forward the Sub-Servicer's analysis and
recommendation with respect to such request. The Sub-Servicer shall
cooperate with and assist the Master Servicer in obtaining information
necessary for the analysis of such requests. The Sub-Servicer shall be
entitled to fifty percent (50%) of any assumption fees and application
fees in connection with an assumption or transfer of interest request, in
each case collected with respect to the Mortgage Loans to the extent that
the Master Servicer is entitled to such fees under the Pooling and
Servicing Agreement. The Sub-Servicer will close any such transaction
consented to by the Master Servicer.
(18) Section 3.09(a). References to the Master Servicer shall not be
deemed to be references to the Sub-Servicer for purposes of Section
3.09(a) of the Pooling and Servicing Agreement.
(19) Section 3.10. The references to the Certificate Account shall
be references to the Sub-Servicer Custodial Account. No expense incurred
in connection with any instrument of satisfaction or deed of reconveyance
shall be chargeable to the Sub-Servicer Custodial Account.
(20) Section 3.11(a) and (b). References to the Master Servicing Fee
shall be references to the Sub-Servicing Fee and references to the Master
Servicing Fee Rate shall be references to the Sub-Servicing Fee Rate. All
references to the Investment Accounts shall be references to the
Sub-Servicer Custodial Account, Servicing Accounts and Reserve Accounts.
Fifty percent (50%) of any Default Charges paid in respect of a delinquent
loan to which the Master Servicer is entitled under the Pooling and
Servicing Agreement (other than as payment of interest on Advances or
Additional Trust Fund expenses) shall be paid to the Sub-Servicer. The
Sub-Servicer shall be entitled to Prepayment Interest Excesses to the
extent not needed by the Master Servicer to offset Prepayment Interest
Shortfalls (other than the Prepayment Interest Shortfalls incurred on a
Specially Serviced Loan and other than the Balloon Payment Interest
Shortfalls incurred on a Specially Serviced Loan) under Section 3.19 of
the Pooling and Servicing Agreement (such Prepayment Interest Excesses to
be applied pro rata along with any other Prepayment Interest Excesses in
the same Collection Period to cover Prepayment Interest Shortfalls (other
than the Prepayment Interest Shortfalls incurred on a Specially Serviced
Loan and other than the Balloon Payment Interest Shortfalls incurred on a
Specially Serviced Loan)). The Sub-Servicer shall remit any Prepayment
Interest Excesses to the Master Servicer as part of the Sub-Servicer
Remittance Amount. On the Master Servicer Remittance Date (as defined in
the Pooling and Servicing Agreement) the Master Servicer shall promptly
remit any Prepayment Interest Excesses that the Sub-Servicer is entitled
to under the second previous sentence to the Sub-Servicer. The
Sub-Servicer shall be entitled to fifty percent (50%) of any modification,
consent, waiver, earnout, or assumption fees, application fees or other
fees or charges in connection with an assumption, modification or similar
request, in each case collected with respect to the Mortgage Loans to the
extent that the Master Servicer is entitled to such fees or charges under
the Pooling and Servicing Agreement, except that the Sub-Servicer shall be
entitled to one hundred percent (100%) of any fee collected with respect
to any matter described in Section 3.20(g)(i), (ii) and (iii) of the
Pooling and Servicing Agreement. With respect to Section 3.20(g)(iv) of
the Pooling and Servicing Agreement, the Master Servicer shall be entitled
to any fee, charge or other compensation in connection with the analysis
and approval of leasing activity to the extent that the Master Servicer
pursuant to Section 3.01(c)(30) of this Agreement (and Section 3.20(g)(iv)
of the Pooling and Servicing Agreement) is responsible for the analysis
and approval of the related leasing activity. With respect to Section
3.20(g)(iv) of the Pooling and Servicing Agreement, the Sub-Servicer shall
be entitled to any fee, charge or other compensation in connection with
the analysis and approval of leasing activity to the extent that the
Sub-Servicer pursuant to Section 3.01(c)(30) of this Agreement (and
Section 3.20(g)(iv) of the Pooling and Servicing Agreement) is responsible
for the analysis and approval of the related leasing activity. The
Sub-Servicer shall be entitled to seventy five percent (75%) of any fees
or charges in connection with a defeasance request, in each case collected
with respect to the Mortgage Loans to the extent that the Master Servicer
is entitled to such fees or charges under the Pooling and Servicing
Agreement.
(21) Reserved.
(22) Reserved.
(23) Reserved.
(24) Section 3.12(a) and (b). The Sub-Servicer shall promptly (but
in no event later than 30 days after the related inspection or collection,
as applicable) forward to the Master Servicer a copy of all inspection
reports prepared by the Sub-Servicer and all operating statements and rent
rolls collected by the Sub-Servicer. The Sub-Servicer may engage a 3rd
party at its cost to perform property inspections and prepare property
inspection reports without first obtaining the consent of the Master
Servicer. The Sub-Servicer in connection with the reports that it prepares
in connection with Section 3.12(a) and (b) of the Pooling and Servicing
Agreement will afford the Master Servicer reasonable cooperation by
providing such information as the Master Servicer may request in
connection with the Master Servicer's responsibilities in Section 3.12(a)
and (b) of the Pooling and Servicing Agreement. The Sub-Servicer shall
prepare the CMSA Operating Statement Analysis Report and the CMSA NOI
Adjustment Worksheet in Microsoft Excel format and deliver them
electronically to the Master Servicer.
(25) Reserved.
(26) Reserved.
(27) Reserved.
(28) Section 3.15. With respect to the Mortgage Loans serviced
hereunder, the Sub-Servicer shall fulfill all of the obligations of the
Master Servicer required pursuant to Section 3.15 and Section 6.05 of the
Pooling and Servicing Agreement as if the Sub-Servicer were the Master
Servicer hereunder; provided, however, that the Sub-Servicer shall not be
required to make available information or reports prepared by or entered
into by the Special Servicer to the extent such information and reports
are not in the possession of the Sub-Servicer. Upon reasonable prior
notice, the Sub-Servicer shall provide to the Master Servicer access to
the Servicing Files.
(29) Section 3.19(a) and (e). The Sub-Servicer shall deposit all
Compensating Interest Payments in the Sub-Servicer Custodial Account on
each Sub-Servicer Remittance Date. References to Master Servicing Fees in
Section 3.19(e) shall be references to the Sub-Servicing Fee. Section
3.19(e)(i) shall not be incorporated, and Prepayment Interest Shortfalls
incurred on Specially Serviced Loans shall not be included in Section
3.19(e)(ii). With respect to Section 3.19(l) and 3.19(m), the Sub-Servicer
shall send the notices and other information required to be sent by the
Master Servicer to the Directing Certificateholder and/or the Special
Servicer in the manner and time frames called for therein and shall copy
the Master Servicer with respect thereto.
(30) Section 3.20. The Sub-Servicer will not approve or consent to
any modification, extension, waiver or amendment, with respect to any
Mortgage Loan without the prior written consent of the Master Servicer. To
the extent the Master Servicer has the obligation and authority under the
Pooling and Servicing Agreement, the Sub-Servicer may, without the consent
of the Master Servicer approve any lease or extension or renewal thereof
if the Master Servicer is so permitted under Section 3.20(g) of the
Pooling and Servicing Agreement. The Sub-Servicer shall forward all
requests for such matters (except for those that the Sub-Servicer is
permitted to process as contemplated above) to the Master Servicer along
with all information contained in the Mortgage File reasonably requested
by the Master Servicer for the analysis of such requests and the
Sub-Servicer shall also forward the Sub-Servicer's analysis and
recommendation with respect to such request. The Sub-Servicer will close
any such transaction. Notwithstanding the foregoing the Sub-Servicer shall
not be required to forward any documentation or obtain the consent of the
Master Servicer in connection with any of the actions covered under
Section 3.20(g)(i), (ii) and (iii) of the Pooling and Servicing Agreement.
With respect to Section 3.20(g)(iv) of the Pooling and Servicing
Agreement, the Sub-Servicer shall subject to the applicable requirements
and restrictions in the Pooling and Servicing Agreement applicable to the
Master Servicer, be responsible for analyzing and approving without the
consent of the Master Servicer leasing activities (including without
limitation, subordination, non-disturbance and attornment agreements) for
less than the lessor of (A) 50,000 square feet and (B) 20% of the related
Mortgaged Property. The Master Servicer shall be responsible for the
analysis and approval of any lease which would not be subject to the
analysis and approval of the Sub-Servicer in the immediately preceding
sentence. The Sub-Servicer agrees to provide reasonable cooperation to the
Master Servicer to enable the Master Servicer to fulfill its obligations
under Section 3.20(g)(iv) of the Pooling and Servicing Agreement. The
Sub-Servicer will not accept any Principal Prepayment with respect to any
Mortgage Loan without the written consent of the Master Servicer. The
Sub-Servicer shall promptly forward all requests for Principal Prepayments
to the Master Servicer, along with a payoff statement (with respect to
each Principal Prepayment request) setting forth the amount of the
necessary Principal Prepayment calculated by the Sub-Servicer.
(31) Section 3.21(a). The Sub-Servicer shall immediately notify the
Master Servicer of any event or circumstance that the Sub-Servicer deems
to constitute a Servicing Transfer Event with respect to any Mortgage
Loan. The determination as to whether a Servicing Transfer Event has
occurred shall be made by the Master Servicer. Upon receipt by the Master
Servicer of notice from the Special Servicer that a Specially Serviced
Mortgage Loan has become a Corrected Mortgage Loan, the Master Servicer
shall promptly give the Sub-Servicer notice thereof and the obligation of
the Sub-Servicer to service and administer such Mortgage Loan shall
resume.
(32) Reserved.
(33) Section 3.22. References to the Master Servicer shall not be
deemed to be references to the Sub-Servicer for purposes of Section 3.22
of the Pooling and Servicing Agreement. Each and every one of the terms
and conditions of Section 3.22 of the Pooling and Servicing Agreement
shall be enforceable against the Sub-Servicer in accordance with the terms
thereof. The Sub-Servicer may not enter into any new Sub-Servicing
Agreements in connection with the Mortgage Loans and shall directly
service the Mortgage Loans in accordance with the terms and conditions of
this Agreement.
(34) Section 3.24. In accordance with such section, the Sub-Servicer
may disseminate general statistical information relating to the mortgage
loan portfolio being serviced by the Sub-Servicer (including the related
Mortgage Loans) so long as the Sub-Servicer does not identify the related
Mortgagors.
(35) Section 3.25. Is incorporated herein.
(36) Section 3.26. The Sub-Servicer shall promptly analyze all
defeasance requests and forward to the Master Servicer for approval its
recommendation and summary in the form of Exhibit L, with respect to any
defeasance of a Mortgage Loan. The Sub-Servicer will close any such
defeasance approved by the Master Servicer.
(37) Section 3.27. The Sub-Servicer shall initially retain all
Default Charges collected in connection with the Mortgage Loans. The
Master Servicer shall notify the Sub-Servicer in a commercially
practicable period of the calculation and the amount of Default Charges
(if any) required to be disbursed pursuant to Section 3.27(a) of the
Pooling and Servicing Agreement, and the Sub-Servicer shall remit such
amount to the extent that it has actually collected such amount to the
Master Servicer within two (2) Business Days of the Master Servicer's
notice to remit. If the Sub-Servicer fails to remit such Default Charges
in the time period referenced in the preceding sentence, the Sub-Servicer
will be required to remit such Default Charges as received on a going
forward basis thereafter.
(38) Section 4.02(b) is not incorporated herein. The Sub-Servicer
shall deliver to the Master Servicer by electronic transmission in a
format designated by the Master Servicer:
a. not later than 1:00 p.m. Charlotte, North Carolina Time on
the Sub-Servicer Reporting Date, the Collection Report, the CMSA
Loan Periodic Update File, the CMSA Property File and the CMSA
Delinquent Loan Status Report, the CMSA Comparative Financial Status
Report, the CMSA Master Servicer Watch List Report, the CMSA Loan
Level Reserve-LOC Report and the CMSA Financial File, each providing
the required information as of the related Determination Date;
b. not later than 1:00 p.m., Charlotte, North Carolina Time on
the Sub-Servicer Reporting Date in July (for the months of January
through June) and January (for the months of July through December)
of each year, the information on the Mortgage Loans, including
without limitation information regarding UCC Financing Statements,
taxes, insurance premiums and ground rents, starting for the period
ending in December 2006, in the form of Exhibit E attached hereto.
The Sub-Servicer shall reasonably cooperate with the Master Servicer
in providing information needed to establish the CMSA Loan Setup File.
Additionally, within thirty (30) days of the Closing Date and on a
quarterly basis starting for the quarter ending in December of 2006 on the 30th
of the month following the end of each calendar quarter, the Sub-Servicer shall
provide all information and reports to the Master Servicer set forth in Exhibit
I in connection with the Mortgage Loans sub-serviced by it under this Agreement.
The Sub-Servicer shall deliver to the Master Servicer on the third
day of each month, unless such date is not a Business Day then in such case, no
later than one Business Day prior to the Determination Date, by 3:00 p.m.
Charlotte, North Carolina Time by electronic transmission in a format designated
by the Master Servicer, a remittance report containing scheduled balance
information for each Mortgage Loan reflecting the scheduled Periodic Payment for
such month in the form of Exhibit G attached hereto. In addition, on each day
that the Sub-Servicer forwards to the Master Servicer any funds pursuant to
Section 3.01(c)(8) of this Agreement, the Sub-Servicer shall deliver to the
Master Servicer by electronic transmission in a format designated by the Master
Servicer a report of the nature of such remittance in the form of Exhibit G
attached hereto. The Sub-Servicer shall also prepare and deliver to the Master
Servicer a reconciliation of all collection accounts and servicing accounts for
the calendar month preceding each Determination Date, together with a copy of
the related bank statement within twenty-five (25) days after such Determination
Date.
(39) Section 4.03 is not incorporated herein. The Sub-Servicer shall
have no obligation to make P&I Advances.
(40) Section 11.01. In the second and third sentences of Section
11.01 of the Pooling and Servicing Agreement, references to the Depositor
and the Master Servicer shall remain references to each of them. The
Sub-Servicer shall provide any and all good faith cooperation to the
Master Servicer and/or the Depositor reasonably requested and necessary to
enable them to comply with Regulation AB.
(41) Section 11.02. Is incorporated herein.
(42) Section 11.03 is not incorporated herein. The Sub-Servicer
shall provide all reasonable assistance (with respect to information
regarding the Sub-Servicer or the Mortgage Loans) to the Master Servicer
to enable it to comply with Section 11.03 of the Pooling and Servicing
Agreement.
(43) Section 11.04 is not incorporated herein. The Sub-Servicer
shall provide all reasonable cooperation (with respect to information
regarding the Sub-Servicer or the Mortgage Loans) to the Master Servicer
to enable the Master Servicer to fulfill all of the obligations of the
Master Servicer under Section 11.04 of the Pooling and Servicing
Agreement.
(44) Section 11.05. The Sub-Servicer shall provide all the reports
required of a Sub-Servicer and an Additional Servicer under Section 11.05
of the Pooling and Servicing Agreement. The Sub-Servicer shall provide all
reasonable cooperation (with respect to information regarding the
Sub-Servicer or the Mortgage Loans) to enable the Master Servicer to
provide any Additional Form 10-K Disclosure. To the extent that a
Sub-Servicer is aware of any information that would constitute Additional
Form 10-K Disclosure with respect to itself under Item 1117 of Regulation
AB and with respect to affiliations with the Trustee or Special Servicer
under Item 1119(a) of Regulation AB, the Sub-Servicer shall provide such
information to the Master Servicer no later than five (5) Business Days
prior to the date when such information is required to be provided by the
Master Servicer under the Pooling and Servicing Agreement. The
Sub-Servicer hereby acknowledges that the purpose of Section 11.05 of the
Pooling Agreement is to facilitate the compliance by the Depositor with
Regulation AB.
(45) Section 11.06 is incorporated herein.
(46) Section 11.07. The Sub-Servicer shall within one (1) Business
Day of the occurrence thereof notify the Master Servicer to the extent
that a Sub-Servicer becomes aware of any Reportable Event with respect to
Item 6.02 of Form 8-K as to the Sub-Servicer. The Sub-Servicer shall
provide all reasonable cooperation to the Master Servicer for the Master
Servicer to fulfill its obligations under Section 11.07 of the Pooling and
Servicing Agreement (including without limitation, consultation with the
Master Servicer with respect to any Reportable Event).
(47) Section 11.09. Is incorporated herein.
(48) Section 11.10. The Sub-Servicer shall provide all the reports
required of a Sub-Servicer and a Servicing Function Participant under
Section 11.10 of the Pooling and Servicing Agreement on or before the
second Business Day prior to the date when such information is required to
be provided by the Master Servicer under the Pooling and Servicing
Agreement.
(49) Section 11.11. The accountant's report referenced in Section
11.11 of the Pooling and Servicing Agreement shall be delivered by the
Sub-Servicer (without regarding whether the Sub-Servicer is a Servicing
Function Participant) by March 15th of each year, beginning March 15,
2007, except as set forth in Section 11.11 of the Pooling and Servicing
Agreement with respect to years in which Depositor reporting to the SEC is
not required. In such years, the report shall be delivered on or before
April 15th each year. If the Sub-Servicer is a Servicing Function
Participant, the report shall be delivered to all the parties specified in
Section 11.11 of the Pooling and Servicing Agreement, and if the
Sub-Servicer is not a Servicing Function Participant, such report shall be
delivered only to the Master Servicer.
(50) Section 11.12. References to the Servicing Function Participant
shall be references to the Sub-Servicer. References to each of the
Trustee, the Master Servicer and the Special Servicer shall remain a
reference to each such party.
Section 3.02 Merger or Consolidation of the Sub-Servicer.
The Sub-Servicer shall keep in full effect its existence, rights and
franchises as a national banking association under the laws of the United
States.
Any Person into which the Sub-Servicer may be merged or
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Sub-Servicer shall be a party, or any Person
succeeding to all or substantially all of the business of the Sub-Servicer,
shall be the successor of the Sub-Servicer 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 the
successor or surviving Person (i) must be a business entity whose business
includes the origination and servicing of mortgage loans and shall be authorized
to transact business in the state or states in which the related Mortgaged
Properties it is to service are situated to the extent required by applicable
law, (ii) must be an approved servicer of multifamily mortgage loans for ▇▇▇▇▇▇▇
Mac or ▇▇▇▇▇▇ Mae or a HUD-Approved servicer, (iii) must be acceptable to the
Master Servicer, which consent may not be unreasonably withheld, and (iv) shall
have assumed in writing the obligations of the Sub-Servicer under this
Agreement.
Section 3.03 Limitation on Liability of the Sub-Servicer and Others.
Neither the Sub-Servicer nor any of the officers, employees or
agents of the Sub-Servicer shall be under any liability to the Master Servicer
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 this provision shall not protect the Sub-Servicer or any such person
against liability for any breach of representation or warranty made herein, or
any liability which would otherwise be imposed by reason of willful misfeasance,
bad faith or negligence in the performance of its duties or by reason of
negligent disregard of obligations and duties hereunder. The Sub-Servicer and
any officer, employee or agent of the Sub-Servicer may rely in good faith on any
document of any kind prima facie properly executed and submitted by any Person
respecting any matters arising hereunder. The Sub-Servicer shall not be under
any obligation to appear in, prosecute or defend any legal or administrative
action (whether in equity or at law), proceeding, hearing or examination that is
not incidental to its respective duties under this Agreement or which, in its
opinion may involve it in any ultimate expenses or liability; provided, however,
the Sub-Servicer may involve it in any ultimate expenses or liability; provided,
however, the Sub-Servicer may, with the consent of the Master Servicer,
undertake any such action, proceeding, hearing or examination that it may deem
necessary or desirable in respect to this Agreement and the rights and duties of
the parties hereto. In such event, the legal expenses and costs of such action,
proceeding, hearing or examination and any liability resulting therefrom, to the
extent the same are expenses, costs and liabilities of the Trust Fund pursuant
to the Pooling and Servicing Agreement, shall be expenses, costs and liabilities
of the Master Servicer and the Sub-Servicer shall be entitled to be reimbursed
therefor from the Master Servicer upon written demand. To the extent provided in
Section 6.03 of the Pooling and Servicing Agreement, the Sub-Servicer 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 the
Sub-Servicer pursuant to the terms hereof; 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 the Sub-Servicer, (B) willful
misfeasance, bad faith, recklessness or negligence in the performance of
obligations or duties hereunder by the Sub-Servicer, or (C) from negligent or
reckless disregard of such obligations or duties.
Section 3.04 Sub-Servicer Not to Resign.
The Sub-Servicer shall not resign from the obligations and duties
hereby imposed on it except by mutual consent of the Sub-Servicer and the Master
Servicer, or upon the determination that its duties hereunder are no longer
permissible under applicable law and such incapacity cannot be cured by the
Sub-Servicer. Any such determination permitting the resignation of the
Sub-Servicer shall be evidenced by an Opinion of Counsel to such effect
delivered to the Master Servicer, which Opinion of Counsel shall be in form and
substance acceptable to the Master Servicer.
Section 3.05 No Transfer or Assignment of Servicing.
With respect to the responsibility of the Sub-Servicer to service
the Mortgage Loans hereunder, the Sub-Servicer acknowledges that the Master
Servicer has acted in reliance upon the Sub-Servicer's independent status, the
adequacy of its servicing facilities, plant, personnel, records and procedures,
its integrity, reputation and financial standing and the continuance thereof.
Without in any way limiting the generality of this Section 3.05, the
Sub-Servicer shall not either assign or transfer this Agreement or the servicing
hereunder nor delegate its rights or duties hereunder or any portion thereof, or
sell or otherwise dispose of all or substantially all of its property or assets,
without the prior written approval of the Master Servicer, which consent will
not be unreasonably withheld or delayed. Notwithstanding the foregoing, prior to
any assignment or transfer by the Sub-Servicer of this Agreement or the
servicing hereunder (the "Sub-Servicing Rights"), the Sub-Servicer shall allow
the Master Servicer an opportunity to bid on the purchase of such Sub-Servicing
Rights. The Sub-Servicer may also solicit bids from any other parties
independent of the Sub-Servicer. If after receipt by the Sub-Servicer of all
bids, the Master Servicer is not the highest bidder, the Master Servicer will be
given the opportunity to submit a second bid and final bid, which bid shall be
given equal consideration with all other bids.
Section 3.06 Indemnification.
The Master Servicer and the Sub-Servicer each agrees to and hereby
does indemnify and hold harmless the Master Servicer, in the case of the
Sub-Servicer, and the Sub-Servicer, in the case of the Master Servicer
(including any of their partners, directors, officers, employees or agents) from
and against any and all claims, losses, damages, penalties, fines, forfeitures,
reasonable legal fees and related costs, judgments, and any other costs,
liabilities, fees and expenses that the Master Servicer, in the case of the
Sub-Servicer, and the Sub-Servicer, in the case of the Master Servicer, may
sustain arising from or as a result of any willful misfeasance, bad faith or
negligence of the Master Servicer or Sub-Servicer, as applicable, in the
performance of its obligations and duties under this Agreement or by reason of
negligent disregard by the Master Servicer or Sub-Servicer, as applicable, of
its duties and obligations hereunder or by reason of breach of any
representations or warranties made herein; provided, that such indemnity shall
not cover indirect or consequential damages. Each indemnified party hereunder
shall give prompt written notice to the indemnitor of matters which may give
rise to liability of such indemnitor hereunder; provided, however, that failure
to give such notice shall not relieve the indemnitor of any liability except to
the extent of actual prejudice. This Section 3.06 shall survive the termination
of this Agreement and the termination or resignation of the Master Servicer or
the Sub-Servicer.
ARTICLE IV
DEFAULT
Section 4.01 Events of Default.
In case one or more of the following events (each, an "Event of
Default") by the Sub-Servicer shall occur and be continuing, that is to say:
(a) the Sub-Servicer shall deposit into the Sub-Servicer Custodial
Account, any Servicing Account or any REO Account, or to deposit into, or to
remit to the Master Servicer for deposit into, the Certificate Account, on the
dates and at the times required by this Agreement, any amount required to be so
deposited or remitted under this Agreement; provided, however, that one (1) time
within any one (1) year period the Sub-Servicer will have one (1) Business Day
to remedy a failure to make such a deposit or remittance on the date and at the
time required by this Agreement; or
(b) any failure on the part of the Sub-Servicer to observe or
perform its obligations and duties in accordance with Sections 3.01(c)(13), (14)
and (15) of this Agreement; or
(c) any failure on the part of the Sub-Servicer to (a) timely make
available and certify to the Master Servicer the information called for on
Exhibit E attached hereto as required by Section 3.01(c)(38) of this Agreement,
to the extent the obtaining of such information which is a part of such report
is within the Sub-Servicer's control, (b) timely provide to the Master Servicer
the Collection Report which failure continues unremedied for one (1) Business
Day, or (c) in any way comply with any obligation under Section 3.01(c)(40)
through Section 3.01(c)(50) of this Agreement provided that (i) such failures
was during the period when the Trust Fund was subject to the reporting
requirements of the Exchange Act and (ii) such failure (A) was a failure to
deliver notices and/or reports under this Agreement or (B) subjected the Master
Servicer to an Event of Default under the Pooling and Servicing Agreement; or
(d) the Sub-Servicer shall fail three (3) times within any two (2)
year period to timely provide to the Master Servicer any report required by this
Agreement to be provided to the Master Servicer, to the extent the obtaining of
such information which is a part of such report is within the Sub-Servicer's
control; or
(e) any failure on the part of the Sub-Servicer duly to observe or
perform in any material respect any other of the covenants or agreements on the
part of the Sub-Servicer contained in this Agreement which continues unremedied
for a period of twenty (20) days after the date on which written notice of such
failure, requiring the same to be remedied, shall have been given to the
Sub-Servicer by the Master Servicer; provided, however, that if such failure on
the part of the Sub-Servicer duly to observe or perform in any material respect
any other of the covenants or agreements is capable of being cured and the
Sub-Servicer is diligently pursuing such cure, such twenty (20) day period shall
be extended for an additional twenty (20) days; or
(f) the Sub-Servicer shall fail to timely deliver to the Master
Servicer any Backup Certificate as required by Section 3.01(c)(45) of this
Agreement, which failure in any case continues unremedied three (3) Business
Days immediately preceding the day the Master Servicer is required to deliver
any certification under Section 11.06 of the Pooling and Servicing Agreement; or
(g) any breach on the part of the Sub-Servicer of any representation
or warranty contained in Section 2.05 of the Pooling and Servicing Agreement
which materially and adversely affects the interests of the Master Servicer or
any Class of Certificateholders and which continues unremedied for a period of
thirty (30) days after the date on which notice of such breach, requiring the
same to be remedied, shall have been given to the Sub-Servicer by the Master
Servicer; provided, however, that if such representation or warranty is capable
of being cured and the Sub-Servicer is diligently pursuing such cure, such
thirty (30) day period shall be extended for an additional thirty (30) days; or
(h) 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, marshaling of assets and
liabilities or similar proceedings, or for the winding-up or liquidation of its
affairs, shall have been entered against the Sub-Servicer and such decree or
order shall have remained in force undischarged or unstayed for a period of
sixty (60) days; or
(i) the Sub-Servicer shall consent to the appointment of a
conservator, receiver, liquidator, trustee or similar official in any
bankruptcy, insolvency, readjustment of debt, marshaling of assets and
liabilities or similar proceedings of or relating to the Sub-Servicer or of or
relating to all or substantially all of its property; or
(j) the Sub-Servicer 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
(k) Reserved; or
(l) the Sub-Servicer shall assign or transfer or attempt to assign
or transfer all or part of its rights and obligations hereunder except as
permitted by this Agreement; or
(m) the net worth of the Sub-Servicer, determined in accordance with
generally accepted accounting principles shall decline to less than $15 million
or the minimum net worth requirement of ▇▇▇▇▇▇▇ Mac, as it may be modified from
time to time, whichever is greater; or
(n) the Master Servicer shall receive written notice from a Rating
Agency that the continuation of the Sub-Servicer in such capacity would result
in a downgrade, qualification, or withdrawal of any rating assigned to any Class
of Certificates, subject in any case to a 60-day cure period, provided that the
Master Servicer shall promptly forward such notice to the Sub-Servicer.
If any Event of Default shall occur and be continuing, then, and in
each and every such case, so long as such Event of Default shall not have been
remedied, the Master Servicer may terminate, by notice in writing to the
Sub-Servicer, all of the rights and obligations of the Sub-Servicer as
Sub-Servicer under this Agreement and in and to the Mortgage Loans and the
proceeds thereof. From and after the receipt by the Sub-Servicer of such written
notice, all authority and power of the Sub-Servicer under this Agreement,
whether with respect to the Mortgage Loans or otherwise, shall pass to and be
vested in the Master Servicer pursuant to and under this Section, and, without
limitation, the Master Servicer is hereby authorized and empowered to execute
and deliver, on behalf of and at the expense of the Sub-Servicer, 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 Mortgage Loans and related documents, or
otherwise. The Sub-Servicer agrees that if it is terminated pursuant to this
Section, it shall promptly (and in any event no later than five (5) Business
Days subsequent to its receipt of the notice of termination) provide the Master
Servicer with all documents and records (including, without limitation, those in
electronic form) requested by it to enable it to assume the Sub-Servicer's
functions hereunder, and shall cooperate with the Master Servicer in effecting
the termination of the Sub-Servicer's responsibilities and rights hereunder and
the assumption by a successor of the Sub-Servicer's obligations hereunder,
including, without limitation, the transfer within one Business Day to the
Master Servicer for administration by it of all cash amounts which shall at the
time be or should have been credited by the Sub-Servicer to the Sub-Servicer
Custodial Account, the Certificate Account, any Servicing Account, any REO
Account and any Reserve Account, or thereafter be received with respect to the
Mortgage Loans or any REO Property (provided, however, that the Sub-Servicer
shall continue to be entitled to receive all amounts accrued or owing 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 3.03 of this Agreement notwithstanding any such
termination).
In addition to any other rights the Master Servicer may have
hereunder, if the Sub-Servicer fails to remit to the Master Servicer any amounts
when required to be remitted hereunder, the Sub-Servicer shall pay to the Master
Servicer interest on the amount of such late remittance at the rate of Bank of
America, National Association cost of funds per annum, applied on a per diem
basis for each day such remittance is late (i.e., said per annum rate divided by
365 multiplied by the number of days late); but in no event shall such interest
be greater than the maximum amount permitted by law.
In addition to any other rights and remedies available to the Master
Servicer hereunder or at law or equity, including, without limitation, the right
to a recovery of damages, the Master Servicer may impose, and if so imposed, the
Sub-Servicer shall pay, the penalties described in this paragraph for any
failure by the Sub-Servicer to deposit into any account required hereby, or to
deposit into or to remit to the Master Servicer for deposit into the Certificate
Account, on a timely basis, any amount required to be so deposited or remitted
under this Agreement, or (b) any failure by the Sub-Servicer to timely provide
the Master Servicer any report required by this Agreement to be provided to the
Master Servicer (each such failure referred to herein as a "Sub-Servicer
Delinquency"). The Master Servicer may impose on the Sub-Servicer a penalty of
$500.00 for the second Sub-Servicer Delinquency to occur hereunder ("Initial
Sub-Servicer Delinquency"), a penalty of $1,000.00 for the next Sub-Servicer
Delinquency occurring within two (2) years following an Initial Sub-Servicer
Delinquency, and a penalty of $1,500.00 for any other Sub-Servicer Delinquency
occurring within two (2) years following an Initial Sub-Servicer Delinquency;
provided, however, that if no Sub-Servicer Delinquency occurs during any two (2)
year period, the first Sub-Servicer Delinquency thereafter shall be deemed to be
an "Initial Sub-Servicer Delinquency". The penalties provided for in this
paragraph are not intended to constitute liquidated damages. The rights and
remedies of the Master Servicer under this Agreement are cumulative with, and
not exclusive of, any other rights or remedies which it would otherwise have.
Section 4.02 Waiver of Defaults.
The Master Servicer may waive any default by the Sub-Servicer in the
performance of its obligations hereunder and its consequences. Upon any such
waiver of a past default, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been remedied for every
purpose of this Agreement. No such waiver shall extend to any subsequent or
other default or impair any right consequent thereon except to the extent
expressly so waived.
Section 4.03 Other Remedies of Master Servicer.
During the continuance of any Event of Default, so long as such
Event of Default shall not have been remedied, the Master Servicer, in addition
to the rights specified in Section 4.01, shall have the right, in its own name,
to take all actions now or hereafter existing at law, in equity or by statute to
enforce its rights and remedies (including the institution and prosecution of
all judicial, administrative and other proceedings and the filing 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 V
TERMINATION
Section 5.01 Termination.
Except as otherwise specifically set forth herein, the rights,
obligations and responsibilities of the Sub-Servicer shall terminate (without
payment of any penalty or termination fee) (i) upon the later of the final
payment or other liquidation (or any advance with respect thereto) of the last
Mortgage Loan and the disposition of all REO Property and the remittance of all
funds due hereunder; (ii) by mutual consent of the Sub-Servicer and the Master
Servicer in writing; (iii) pursuant to Section 5.02 of this Agreement; (iv) at
the option of any purchaser of one or more Mortgage Loans pursuant to the
Pooling and Servicing Agreement, upon such purchase and only with respect to
such purchased Mortgage Loan or Mortgage Loans; or (v) upon termination of the
Pooling and Servicing Agreement.
Section 5.02 Termination With Cause.
The Master Servicer may, at its sole option, terminate any rights
the Sub-Servicer may have hereunder with respect to any or all of the Mortgage
Loans, as follows as provided in Section 4.01 of this Agreement upon the
occurrence of an Event of Default.
Any notice of termination shall be in writing and delivered to the
Sub-Servicer as provided in Section 6.05 of this Agreement.
Section 5.03 Reserved.
Section 5.04 Termination of Duties with Respect to Specially
Serviced Mortgage Loans.
At such time as any Mortgage Loan becomes a Specially Serviced
Mortgage Loan, the obligations and duties of the Sub-Servicer set forth herein
with respect to such Specially Serviced Mortgage Loan that are required to be
performed by the Special Servicer under the Pooling and Servicing Agreement
shall cease in accordance with Section 3.01(c) of this Agreement. The
Sub-Servicer shall continue to perform all of its duties hereunder with respect
to the Specially Serviced Mortgage Loans to the extent set forth in Section 3.01
of this Agreement. If a Specially Serviced Mortgage Loan becomes a Corrected
Mortgage Loan, the Sub-Servicer shall commence servicing such Corrected Loan
pursuant to the terms of this Agreement.
ARTICLE VI
MISCELLANEOUS
Section 6.01 Successor to the Sub-Servicer.
Prior to termination of the Sub-Servicer's responsibilities and
duties under this Agreement pursuant to Section 3.04, 4.01, 5.01 or 5.02 of this
Agreement, the Master Servicer shall (i) succeed to and assume all of the
Sub-Servicer's responsibilities, rights, duties and obligations under this
Agreement, or (ii) appoint a successor which satisfies the criteria for a
successor Sub-Servicer in Section 3.02 of this Agreement and which shall succeed
to all rights and assume all of the responsibilities, duties and liabilities of
the Sub-Servicer under this Agreement accruing following the termination of the
Sub-Servicer's responsibilities, duties and liabilities under this Agreement.
Section 6.02 Financial Statements.
The Sub-Servicer shall, upon the request of the Master Servicer,
make available its publicly available financial statements and other records
relevant to the performance of the Sub-Servicer's obligations hereunder.
Section 6.03 Closing.
The closing for the commencement of the Sub-Servicer to perform the
servicing responsibilities under this Agreement with respect to the Mortgage
Loans shall take place on the Closing Date. At the Master Servicer's option, the
closing shall be either by telephone, confirmed by letter or wire as the parties
shall agree, or conducted in person, at such place as the parties shall agree.
The closing shall be subject to the execution and delivery of the
Pooling and Servicing Agreement by the parties thereto.
Section 6.04 Closing Documents.
The Closing Documents shall consist of all of the following
documents:
(a) to be provided by the Sub-Servicer:
(1) this Agreement executed by the Sub-Servicer;
(2) an Officer's Certificate of the Sub-Servicer, dated the
Closing Date and in the form of Exhibit B hereto, including all
attachments thereto;
(3) Reserved;
(4) the account certifications in the form of Exhibit F hereto
required by Sections 3.01(c)(4), (6) & (7) of this Agreement, fully
completed; and
(b) to be provided by the Master Servicer:
(1) this Agreement executed by the Master Servicer; and
(2) the Mortgage Loan Schedule, with one copy to be attached
to each counterpart of this Agreement as Exhibit A hereto; and
(3) the Pooling and Servicing Agreement substantially in the
form of Exhibit C hereto.
Section 6.05 Notices.
Except as provided herein, all demands, notices, consents and
communications hereunder shall be in writing and shall be deemed to have been
duly given when delivered to the following addresses:
(i) if to the Sub-Servicer:
Wachovia Bank, National Association
Commercial Real Estate Services
NC 1075
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇-▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
Reference: Banc of America Commercial Mortgage Inc.,
Series 2006-5
with a copy to:
▇▇▇▇ ▇▇▇▇▇▇▇▇
c/o Wachovia Bank, National Association
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇., ▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Reference: Banc of America Commercial
Mortgage Inc.,
Series 2006-5
(ii) if to the Master Servicer:
Bank of America, National Association,
Capital Markets Servicing Group
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Servicing Manager
Reference: Banc of America Commercial
Mortgage Inc.
Series 2006-5
with copy to:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
or such other address as may hereafter be furnished to the other party by like
notice.
Section 6.06 Severability Clause.
Any part, provision, representation or warranty of this Agreement
which is prohibited or which is held to be void or unenforceable shall be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction as to any Mortgage Loan shall not
invalidate or render unenforceable such provision in any other jurisdiction. To
the extent permitted by applicable law, the parties hereto waive any provision
of law which prohibits or renders void or unenforceable any provision hereof. If
the invalidity of any part, provision, representation or warranty of this
Agreement shall deprive any party of the economic benefit intended to be
conferred by this Agreement, the parties shall negotiate, in good faith, to
develop a structure the economic effect of which is nearly as possible the same
as the economic effect of this Agreement without regard to such invalidity.
Section 6.07 Counterparts.
This Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original, and all such
counterparts shall constitute one and the same instrument.
Section 6.08 Governing Law.
This Agreement shall be construed in accordance with the laws of the
State of New York and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with the laws of the State of New
York, except to the extent preempted by Federal Law.
Section 6.09 Protection of Confidential Information.
The Sub-Servicer shall keep confidential and shall not divulge to
any party other than the Master Servicer, the Depositor, the Special Servicer or
the Trustee, without the Master Servicer's prior written consent, any
information pertaining to the Mortgage Loans or any borrower thereunder, except
to the extent that it is appropriate for the Sub-Servicer to do so in working
with third-party vendors, property inspectors, legal counsel, auditors, taxing
authorities or other governmental agencies or in accordance with this Agreement.
Section 6.10 Intention of the Parties.
It is the intention of the parties that the Master Servicer is
conveying, and the Sub-Servicer is receiving, only a contract for servicing the
Mortgage Loans. Accordingly, the parties hereby acknowledge that the Trustee
remains the sole and absolute beneficial owner of the Mortgage Loans and all
rights related thereto.
Section 6.11 Third Party Beneficiary.
The Depositor and the Trustee shall be a third party beneficiary
under this Agreement, provided that, except to the extent the Trustee or its
designee assumes the obligations of the Master Servicer hereunder as
contemplated by Section 6.12 of this Agreement, none of the Depositor, the
Trustee, the Trust Fund, any successor Master Servicer, or any Certificateholder
shall have any duties under this Agreement or any liabilities arising herefrom.
Section 6.12 Successors and Assigns; Assignment of Agreement.
This Agreement shall bind and inure to the benefit of and be
enforceable by the Sub-Servicer and the Master Servicer and the respective
successors and assigns of the Sub-Servicer and the Master Servicer. This
Agreement shall not be assigned, pledged or hypothecated by the Sub-Servicer to
a third party except as otherwise specifically provided for herein. If the
Master Servicer shall for any reason no longer act in such capacity under the
Pooling and Servicing Agreement (including, by reason of an Event of Default (as
defined therein)), the Trustee or its designee shall thereupon assume all of the
rights and, except to the extent they arose prior to the date of assumption,
obligations of the Master Servicer under this Agreement.
Section 6.13 Waivers.
No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by the party against
whom such waiver or modification is sought to be enforced.
Section 6.14 Exhibits.
The exhibits to this Agreement are hereby incorporated and made a
part hereof and are an integral part of this Agreement.
Section 6.15 General Interpretive Principles.
The article and section headings are for convenience of a reference
only, and shall not limit or otherwise affect the meaning hereof.
Section 6.16 Complete Agreement.
This Agreement embodies the complete agreement between the parties
regarding the subject matter hereof and may not be varied or terminated except
by a written agreement conforming to the provisions of Section 6.18 of this
Agreement. All prior negotiations or representations of the parties are merged
into this Agreement and shall have no force or effect unless expressly stated
herein.
Section 6.17 Further Agreement.
The Sub-Servicer and the Master Servicer each agree to execute and
deliver to the other such reasonable and appropriate additional documents,
instruments or agreements as may be necessary or appropriate to effectuate the
purposes of this Agreement.
Section 6.18 Amendments.
This Agreement may only be amended with the consent of the
Sub-Servicer and the Master Servicer. No amendment to the Pooling and Servicing
Agreement that purports to change the rights or obligations of the Sub-Servicer
hereunder shall be effective against the Sub-Servicer without the express
written consent of the Sub-Servicer.
IN WITNESS WHEREOF, the Sub-Servicer and the Master Servicer have
caused their names to be signed hereto by their respective officers thereunto
duly authorized as of the date first above written.
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
BANK OF AMERICA, NATIONAL ASSOCIATION
By:/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Principal
EXHIBIT A
---------
MORTGAGE LOAN SCHEDULE
Sub-Servicer Fee
Loan in Basis
Number Property Name Cut-off Date Balance Points
------ ------------- -------------------- -----------------
20061737 Pamida Portfolio 68,754,506 2
20061831 Ohio Industrial Portfolio 30,640,000 2
20061415 Sheraton St Louis City Center 27,000,000 2
20061830 Rolling Acres 26,500,000 2
20061718 ▇▇▇▇▇'▇ MHP 25,750,000 2
20061710 Great Falls Marketplace 20,500,000 2
20061858 The Falls at Hunters Pointe 19,700,000 2
20061439 Brittany Point Apartments 18,300,000 2
20061763 Ferncroft Corporate Center 18,000,000 2
20061633 Westgate Shopping Center 17,800,000 2
20061701 Ahwatukee Palms Shopping Center 17,200,000 2
20061704 Water Tower Hill 15,500,000 2
20061460 Lexington Courts Apartments 14,810,000 2
20061712 Bennington Ridge Apartments 13,250,000 2
20061825 Southfield Park Retail Center 11,550,000 2
20061640 Canyon River Center 10,581,091 2
20061473 Westridge Office Center 10,000,000 2
20061856 BJ's Wholesale Club 10,000,000 2
20061383 Holiday Inn - ▇▇▇▇▇▇ City 9,951,889 2
20061659 Riverside Landings 9,282,371 2
20061632 Comfort Suites - Chantilly 9,276,282 2
20061730 Columbia Marketplace 9,000,000 2
20061534 Deer Park Business Center 8,880,000 2
20061749 Timbercrest Village 8,700,000 2
20061355 Franklin Square 8,700,000 2
20061299 Meridian ▇▇▇▇▇▇▇ Apartments 8,400,000 2
20061698 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ 8,325,000 2
20061657 Addison Center 7,984,836 2
20061735 Raymour Distribution Center 7,892,388 2
20061822 Aloha MHC 6,893,578 2
20061529 Scottsdale Design Center 6,500,000 2
20061312 Willo Arms 6,089,609 2
20061582 North High Ridge Apartments 6,000,000 2
20061736 Raymour & ▇▇▇▇▇▇▇▇ Montgomeryville 5,774,409 2
20061433 ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇,▇▇▇,▇▇▇ ▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ 5,150,000 2
20061524 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ 4,600,000 2
20061503 Pinecrest Village 4,425,995 2
20061849 Saddle Mountain Plaza 4,250,000 2
20061298 Okemos Station Apartments 4,000,000 2
20061673 Holiday Inn Express - Blythe 3,990,138 2
20061782 ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ 3,800,000 2
20061769 Comfort Suites Yakima 3,750,000 2
20061699 Comfort Inn & Suites Market Center 3,600,000 2
20061697 ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 3,513,833 2
20061806 Fairfield Inn-Green Bay 3,446,820 2
20061313 Homestead Village 3,392,549 2
20061776 ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ 3,280,000 2
20061783 ▇▇▇▇▇ Pointe 3,196,993 2
20061807 Fairfield Inn-Beloit 3,047,189 2
20061329 North Branch Shopping Center 2,935,170 2
20061681 ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ MHC 2,800,000 2
20061525 Shoppes at Windmill 2,750,000 2
20061583 Savon Drugs - Grand Terrace 2,500,000 2
20061827 Sun Lake Estates 2,307,932 2
20061794 Office Max - Lake ▇▇▇▇▇▇▇ 2,000,000 2
20061628 CVS - Mullica Hill, NJ 1,850,000 2
20061536 Walgreens at Northridge 1,230,000 2
EXHIBIT B
---------
SUB-SERVICER'S OFFICER'S CERTIFICATE
I, ______________________________, hereby certify that I am the duly
elected __________________________ of [Sub-Servicer], a corporation organized
under the laws of the State of ______________________ (the "Sub-Servicer") and
further as follows:
1. Attached hereto as Exhibit 1 is a true, correct and complete copy
of the articles of incorporation of the Sub-Servicer which are in full
force and effect on the date hereof and which have been in effect without
amendment, waiver, rescission or modification since
____________________________.
2. Attached hereto as Exhibit 2 is a true, correct and complete copy
of the by-laws of the Sub-Servicer which are in effect on the date hereof
and which have been in effect without amendment, waiver, rescission or
modification since ____________.
3. Attached hereto as Exhibit 3 is an original certificate of good
standing of the Sub-Servicer, issued within ten days of the date hereof,
and no event has occurred since the date thereof which would impair such
standing.
4. Attached hereto as Exhibit 4 is a true, correct and complete copy
of the corporate resolutions of the Board of Directors of the Sub-Servicer
authorizing the Sub-Servicer to execute and deliver the Sub-Servicing
Agreement, dated as of _________, 200__ (the "Sub-Servicing Agreement"),
by and between the Sub-Servicer and Wachovia Bank, National Association
and such resolutions are in effect on the date hereof and have been in
effect without amendment, waiver, rescission or modification since
_______________.
5. Either (i) no consent, approval, authorization or order of any
court or governmental agency or body is required for the execution,
delivery and performance by the Sub-Servicer of or compliance by the
Sub-Servicer with the Sub-Servicing Agreement or the consummation of the
transactions contemplated by the Sub-Servicing Agreement; or (ii) any
required consent, approval, authorization or order has been obtained by
the Sub-Servicer.
6. Neither the consummation of the transactions contemplated by, nor
the fulfillment of the terms of the Sub-Servicing Agreement, conflicts or
will conflict with or results or will result in a breach of or constitutes
or will constitute a default under the charter or by-laws of the
Sub-Servicer, the terms of any indenture or other agreement or instrument
to which the Sub-Servicer is a party or by which it is bound or to which
it is subject, or any statute or order, rule, regulation, writ, injunction
or decree of any court, governmental authority or regulatory body to which
the Sub-Servicer is subject or by which it is bound.
7. There is no action, suit, proceeding or investigation pending or
to the best of my knowledge threatened against the Sub-Servicer which, in
our judgment, either in any one instance or in the aggregate, may result
in any material adverse change in the business, operations, financial
conditions, properties or assets of the Sub-Servicer or in any material
impairment of the right or ability of the Sub-Servicer to carry on its
business substantially as now conducted or in any material liability on
the part of the Sub-Servicer or which would draw into question the
validity of the Sub-Servicing Agreement or of any action taken or to be
taken in connection with the transactions contemplated hereby, or which
would be likely to impair materially the ability of the Sub-Servicer to
perform under the terms of the Sub-Servicing Agreement.
8. Each person listed on Exhibit 5 attached hereto who, as an
officer or representative of the Sub-Servicer, signed the Sub-Servicing
Agreement and any other document delivered prior hereto or on the date
hereof in connection with the Sub-Servicing Agreement, was, at the
respective times of such signing and delivery, and is now, a duly elected
or appointed, qualified and acting officer or representative of the
Sub-Servicer, who holds the office set forth opposite his or her name on
Exhibit 5, and the signatures of such persons appearing on such documents
are their genuine signatures.
9. The Sub-Servicer is duly authorized to engage in the transactions
described and contemplated in the Sub-Servicing Agreement.
IN WITNESS WHEREOF, I have hereunto signed my name and affixed the
seal of the Sub-Servicer.
Dated: _______________________
By:____________________________________
Name:
Title: [Vice] President
[Seal]
I, _______________________, an [Assistant] Secretary of
[Sub-Servicer], hereby certify that ___________________________ is the duly
elected, qualified and acting [Vice] President of the Sub-Servicer and that the
signature appearing above is [her] [his] genuine signature.
IN WITNESS WHEREOF, I have hereunto signed my name.
Dated:_____________________________
By:____________________________________
Name:
Title: [Assistant] Secretary
[Seal]
EXHIBIT 5
---------
to
Sub-Servicer's Officer's Certificate
Name Title Signature
-------------------------- ---------------------- ---------------------
-------------------------- ---------------------- ---------------------
-------------------------- ---------------------- ---------------------
-------------------------- ---------------------- ---------------------
-------------------------- ---------------------- ---------------------
-------------------------- ---------------------- ---------------------
-------------------------- ---------------------- ---------------------
-------------------------- ---------------------- ---------------------
-------------------------- ---------------------- ---------------------
-------------------------- ---------------------- ---------------------
-------------------------- ---------------------- ---------------------
EXHIBIT C
---------
POOLING AND SERVICING AGREEMENT
EXHIBIT D
---------
Reserved
EXHIBIT E
---------
QUARTERLY SERVICING CERTIFICATION
Sub-Servicer:__________________________
Re: Series ________
Pursuant to the Servicing Agreement(s) between Bank of America, National
Association and [Sub-Servicer], we certify with respect to each mortgage loan
serviced by us for Bank of America, National Association that, as of the quarter
ending ____________________, except as otherwise noted below:
All taxes, assessments and other governmental charges levied against the
mortgaged premises, ground rents payable with respect to the mortgaged premises,
if any, which would be delinquent if not paid, have been paid.
Based on [Sub-Servicer's] monitoring of the insurance in accordance with the
Servicing Standard, all required insurance policies are in full force and effect
on the mortgaged premises in the form and amount and with the coverage required
by the Servicing Agreement(s).
All necessary action has been taken to continue all UCC Financing Statements in
favor of the originator of each mortgage loan or in favor of any assignee prior
to the expiration of such UCC Financing Statements.
All reserves are maintained and disbursed in accordance with the loan documents
and no obligation for which a reserve is held has not been completed within the
time required by the applicable document.
EXCEPTIONS:___________________________________________________________________
_______________________________________ _______________________________________
Servicing Officer Date
EXHIBIT F
---------
FORM OF ACCOUNT CERTIFICATION
Securitization:
----------------------------------------------------------------
Sub Master
Servicer:
----------------------------------------------------------------
________ New Account _______ Change of Account
Information
Indicate purpose of account
(check all that apply):
________ Principal & Interest _______ Deposit Clearing
________ Taxes & Insurance _______ Disbursement Clearing
________ Reserves (non-interest bearing) _______ Suspense
________ Reserves (interest bearing) _______
Account Number: ________________________________________________________________
Account Name:: _________________________________________________________________
Depository Institution (and Branch):
Name: __________________________________________________________________
Street: ________________________________________________________________
City, State, Zip:_______________________________________________________
Rating Agency: ________________________ Rating: _______________________
Please note that the name of the account must follow the guideline
specifications detailed in the applicable agreement.
Prepared by: ___________________________________________________________________
Signature: _____________________________________________________________________
Title: ________________________________________________________________________
Date: _________________________________________________________________________
Telephone:______________________________________ Fax: ______________________
EXHIBIT G
---------
FORM OF
COLLECTION REPORT
Series _____
Month of ____________
------------------------------------------------------------------------------------------------------------------------------------
Master Subservicers Scheduled Mtg Net Scheduled Schedule Scheduled Scheduled
Services Loan Due Rate Mtg Rate Beginning P&I Amount Principal Interest
Loan # # Date Balance Payment Payment
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
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Totals 0.00 0.00 0.00 0.00
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(TABLE CONTINUED)
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Master Scheduled Curtailed Curtailed Prepayment Other Actual
Services Service Prepayment Prepayment Interest Principal Principal
Loan # Fee Date Excess/Short Adjustment Payment
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Totals 0.00 0.00 0.00 0.00
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(TABLE CONTINUED)
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Master Actual Net Actual Late Assumption Additional Payment
Services Interest Service Charges Fees Fees Loan
Loan # Payment Fees Status
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Totals 0.00 0.00 0.00 0.00 0.00
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(TABLE CONTINUED)
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Master Distribution Scheduled Actual Loan Bal Next Total Reserve Bal Date of
Services Amount Ending As of Payment As Of Maturity
Loan # Balance Distribution Date Due Prior Month End
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Totals 0.00 0.00 0.00 0.00
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Loan Status
A - payment not received but still in grace period
B - late payment but less than 1 month delinquent
O - Current
1 - One month delinquent
2 - Two months delinquent
3 - Three months delinquent
4 - Assumed Schedule Payment
5 - Prepaid in Full
6 - Specially Serviced
7 - in foreclosure
9 - REO
10 - DPO
11 - Modification
Prepared By
Approved By
EXHIBIT H
---------
FORM OF CERTIFICATE OF INSURANCE
Sub-Servicer:__________________________
Re: Series ________
Pursuant to the Sub-Servicing Agreement(s) between Bank of America, National
Association. and [Sub-Servicer], based on [Sub-Servicer's] monitoring of the
insurance in accordance with the Servicing Standard, we certify with respect to
each Mortgage Loan serviced by us for Bank of America, National Association that
all required insurance policies are in full force and effect on the mortgaged
premises in the form and amount and with the coverage required by the Servicing
Agreement(s).
_______________________________________ _______________________________________
Servicing Officer Date
EXHIBIT I
---------
FORM OF ADDITIONAL REPORTS
Quarterly Tax Monitoring Report
Deal: BANC OF AMERICA COMMERCIAL MORTGAGE INC., COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2006-5
Sub-Servicer:
Period Ending:
Bank of
Sub-Servicer America Borrower Property Property Parcel Taxing Next Tax Last Date Last Tax
Loan No. Loan No. Name Name Address Number Authority Due Date Tax Paid Amount Paid
-------- -------- -------- -------- -------- ------ --------- -------- -------- -----------
Certified By: _____________________
Title: _____________________
Quarterly UCC Monitoring Report
Deal: BANC OF AMERICA COMMERCIAL MORTGAGE INC., COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2006-5
Sub-Servicer:
Period Ending:
Bank of Original
Sub-Servicer America Borrower Property Filing Original Continuation Next Filing
Loan No. Loan No. Name Name Jurisdiction Number Filing Date Filing Number Date
-------- -------- --------- --------- ------------ ------ ----------- ------------- -----------
Certified By: _____________________
Title: _____________________
Quarterly Insurance Monitoring Report
Deal: BANC OF AMERICA COMMERCIAL MORTGAGE INC., COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2006-5
Sub-Servicer:
Period Ending:
Sub-
Servicer Bank of Policy Terrorism
Loan America Borrower Property Expiration Insurance Type of Policy Coverage Deductible Coverage
No. Loan No. Name Name Date Carrier Coverage* Number Amount Amount (Y/N)
-------- --------- -------- -------- ---------- --------- ---------- ------ -------- ----------- ---------
Meets Meets
Sub- Loss Payee Qualified Mtge
Servicer Terrorism Terrorism Endorsement Ins. Doc
Loan Coverage Deductible Reflects Ratings Req
No. Amount Amount Trust (Y/N) (Y/N) (Y/N)
-------- --------- ----------- ---------- -------- -------
* Type of Coverage column should include each type of insurance coverage on a
separate line including hazard, business interruption, boiler and machinery,
ordinance and law, liability, umbrella, flood(if applicable), earthquake(if
applicable), etc.
EXHIBIT J
---------
MONTHLY SERVICING ACCOUNTS CERTIFICATION
Master Servicer:_______________________
Re:___Series ________
Pursuant to the Servicing Agreement(s) between Bank of America, National
Association and the above named Master Servicer, I certify with respect to each
transaction serviced by us, as noted above, for Bank of America, National
Association that as of ________________ (Determination Date) all collection
accounts and servicing accounts have been properly reconciled and the
reconciliations have been reviewed and approved by Master Servicer's management,
except as otherwise noted below:
EXCEPTIONS:___________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
_______________________________________ _______________________________________
Servicing Officer Date