EXHIBIT 4
==============================================================================
BANC OF AMERICA COMMERCIAL MORTGAGE INC.,
Depositor,
BANK OF AMERICA, NATIONAL ASSOCIATION,
Master Servicer,
MIDLAND LOAN SERVICES, INC.,
Special Servicer,
and
LASALLE BANK NATIONAL ASSOCIATION,
Trustee and REMIC Administrator
_________________________________
POOLING AND SERVICING AGREEMENT
Dated as of October 1, 2006
_________________________________
$2,243,271,167
Commercial Mortgage Pass-Through Certificates
Series 2006-5
<PAGE>
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS; CERTAIN CALCULATIONS IN RESPECT OF THE MORTGAGE
POOL
AND THE CERTIFICATES
Section 1.01 Defined
Terms................................................
Section 1.02 Rules of
Construction; Other Definitional Provisions.........
Section 1.03 Certain
Calculations in Respect of the Mortgage Pool.........
Section 1.04
Cross-Collateralized Mortgage Loans..........................
Section 1.05
Incorporation of Preliminary Statement.......................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES;
ORIGINAL
ISSUANCE OF CERTIFICATES
Section 2.01
Conveyance of Mortgage Loans.................................
Section 2.02
Acceptance of REMIC I by Trustee.............................
Section 2.03 Mortgage
Loan Seller's Repurchase or Substitution of
Mortgage Loans for Material Document Defects and
Material Breaches...........................................
Section 2.04
Representations and Warranties of the Depositor..............
Section 2.05
Representations and Warranties of the Master Servicer........
Section 2.06
Representations and Warranties of the Special Servicer.......
Section 2.07
Representations and Warranties of the Trustee and the
REMIC Administrator.........................................
Section 2.08
[RESERVED]...................................................
Section 2.09 Issuance
of the Class R-I Certificates; Creation of the
REMIC I Regular Interests...................................
Section 2.10
Conveyance of REMIC I Regular Interests; Acceptance of
REMIC II by the Trustee.....................................
Section 2.11 Issuance
of the REMIC II Certificates........................
Section 2.12 Loss of
Value Reserve Fund Provisions........................
Section 2.13
Designation of Grantor Trust.................................
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
Section 3.01
Administration of the Loans..................................
Section 3.02
Collection of Mortgage Loan Payments.........................
Section 3.03
Collection of Taxes, Assessments and Similar Items;
Servicing Account; Servicing Advances; Reserve Accounts.....
Section 3.04
Certificate Account, Distribution Account, REMIC I
Distribution Account, REMIC II Distribution Account,
Excess Interest Distribution Account, Excess Liquidation
Proceeds Account and A/B Loan Custodial Account.............
Section 3.05 Permitted
Withdrawals From the Certificate Account, the
Distribution Account, the A/B Loan Custodial Accounts
and the Excess Liquidation Proceeds Account.................
Section 3.06
Investment of Funds in the Certificate Account, the
Interest Reserve Account, the Excess Interest
Distribution Account, the REMIC I Distribution Account,
the REMIC II Distribution Account, the Excess
Liquidation Proceeds Account and the REO Account............
Section 3.07
Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage.......................................
Section 3.08
Enforcement of Alienation Clauses............................
Section 3.09
Realization Upon Defaulted Loans.............................
Section 3.10 Trustee
to Cooperate; Release of Mortgage Files..............
Section 3.11 Servicing
Compensation; Interest on Servicing Advances;
Payment of Certain Expenses; Obligations of the Trustee
Regarding Back-up Servicing Advances........................
Section 3.12
Inspections; Collection of Financial Statements..............
Section 3.13
[RESERVED]...................................................
Section 3.14
[RESERVED]...................................................
Section 3.15 Access to
Certain Information................................
Section 3.16 Title to
REO Property; REO Account...........................
Section 3.17
Management of REO Property...................................
Section 3.18
Resolution of Defaulted Loans and REO Properties.............
Section 3.19
Additional Obligations of the Master Servicer and the
Special Servicer............................................
Section 3.20
Modifications, Waivers, Amendments and Consents..............
Section 3.21 Transfer
of Servicing Between Master Servicer and Special
Servicer; Record Keeping; Asset Status Report...............
Section 3.22
Sub-Servicing Agreements.....................................
Section 3.23
Designation of the Special Servicer by the Majority
Certificateholder of the Controlling Class or the
Controlling Holder..........................................
Section 3.24
Confidentiality..............................................
Section 3.25 No
Solicitation of Prepayments...............................
Section 3.26 Certain
Matters with Respect to Mortgage Loans Permitting
Defeasance, Franchise Mortgage Loans and Certain
Mortgage Loans Permitting Additional Debt...................
Section 3.27
Application of Default Charges...............................
Section 3.28 Matters
Regarding the A/B Loans..............................
Section 3.29 Certain
Powers of the Controlling Holders and Certain
Intercreditor Matters.......................................
Section 3.30 Matters
Regarding the Puerto Rico Self Storage Portfolio
Mortgage Loan...............................................
Section 3.31 Matters
Regarding the Walgreens Cross-Collateralized
Mortgage Loans..............................................
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS AND RELATED MATTERS
Section 4.01
Distributions................................................
Section 4.02
Statements to Certificateholders; Certain Reports by the
Master Servicer and the Special Servicer....................
Section 4.03 P&I
Advances.................................................
Section 4.04
Allocation of Realized Losses and Additional Trust Fund
Expenses....................................................
Section 4.05 Interest
Reserve Account.....................................
Section 4.06 Excess
Interest Distribution Account.........................
ARTICLE V
THE CERTIFICATES
Section 5.01 The
Certificates.............................................
Section 5.02
Registration of Transfer and Exchange of Certificates........
Section 5.03
Book-Entry Certificates......................................
Section 5.04
Mutilated, Destroyed, Lost or Stolen Certificates............
Section 5.05 Persons
Deemed Owners........................................
Section 5.06
Certification by Certificate Owners..........................
Section 5.07 Regarding
the Identification of Certain Certificateholders...
ARTICLE VI
THE
DEPOSITOR, THE MASTER SERVICER, THE SPECIAL SERVICER AND THE
REMIC
ADMINISTRATOR
Section 6.01 Liability
of the Depositor, the Master Servicer, the
Special Servicer and the REMIC Administrator................
Section 6.02 Merger,
Consolidation or Conversion of the Depositor, the
Master Servicer, the Special Servicer or the REMIC
Administrator...............................................
Section 6.03
Limitation on Liability of the Depositor, the Master
Servicer, the Special Servicer, the REMIC Administrator
and Others..................................................
Section 6.04 Master
Servicer, Special Servicer and REMIC Administrator
Not to Resign...............................................
Section 6.05 Rights of
the Depositor and the Trustee in Respect of the
Master Servicer, the Special Servicer and the REMIC
Administrator...............................................
ARTICLE VII
DEFAULT
Section 7.01 Events of
Default............................................
Section 7.02 Trustee
to Act; Appointment of Successor.....................
Section 7.03 Form 8-K
Information; Notification to Certificateholders.....
Section 7.04 Waiver of
Events of Default..................................
Section 7.05
Additional Remedies of Trustee Upon Event of Default.........
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of
Trustee............................................
Section 8.02 Certain
Matters Affecting the Trustee........................
Section 8.03 Trustee
Not Liable for Validity or Sufficiency of
Certificates or Loans.......................................
Section 8.04 Trustee
May Own Certificates.................................
Section 8.05 Fees of
Trustee; Indemnification of Trustee..................
Section 8.06
Eligibility Requirements for Trustee.........................
Section 8.07
Resignation and Removal of the Trustee.......................
Section 8.08 Successor
Trustee............................................
Section 8.09 Merger or
Consolidation of Trustee...........................
Section 8.10
Appointment of Co-Trustee or Separate Trustee................
Section 8.11
Appointment of Custodians....................................
Section 8.12 Access to
Certain Information................................
Section 8.13
Maintenance of Mortgage File.................................
ARTICLE IX
TERMINATION
Section 9.01
Termination Upon Repurchase or Liquidation of All
Mortgage Loans..............................................
Section 9.02
Additional Termination Requirements..........................
ARTICLE X
ADDITIONAL REMIC AND GRANTOR TRUST PROVISIONS
Section 10.01 REMIC
Administration.........................................
Section 10.02 Depositor, Master Servicer, Special Servicer and
Trustee
to Cooperate with REMIC Administrator.......................
Section 10.03 Fees of the REMIC
Administrator..............................
Section 10.04 Use of
Agents................................................
Section 10.05 Grantor Trust
Administration.................................
ARTICLE XI
EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE
Section 11.01 Intent of the Parties;
Reasonableness........................
Section 11.02 Succession;
Subcontractors...................................
Section 11.03 Filing
Obligations...........................................
Section 11.04 Form 10-D
Filings............................................
Section 11.05 Form 10-K
Filings............................................
Section 11.06 Sarbanes-Oxley
Certification.................................
Section 11.07 Form 8-K
Filings.............................................
Section 11.08 Form 15
Filing...............................................
Section 11.09 Annual Compliance
Statements.................................
Section 11.10 Annual Reports on Assessment of Compliance with
Servicing
Criteria....................................................
Section 11.11 Annual Independent Public Accountants' Servicing
Report......
Section 11.12
Indemnification..............................................
Section 11.13 Signatures; Article XI
Notices...............................
Section 11.14
Amendments...................................................
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01
Amendment....................................................
Section 12.02 Recordation of Agreement;
Counterparts.......................
Section 12.03 Limitation on Rights of
Certificateholders...................
Section 12.04 Governing
Law................................................
Section 12.05
Notices......................................................
Section 12.06 Severability of
Provisions...................................
Section 12.07 Successors and Assigns;
Beneficiaries........................
Section 12.08 Article and Section
Headings.................................
Section 12.09 Notices to and from Rating
Agencies..........................
Section 12.10 Requests for Information; Standing
Requests..................
Section 12.11
Insolvency...................................................
LIST OF EXHIBITS AND SCHEDULES
EXHIBIT A-1 Form of Class A-1
Certificate
EXHIBIT A-2 Form of Class A-2
Certificate
EXHIBIT A-3 Form of Class A-3
Certificate
EXHIBIT A-4 Form of Class A-AB
Certificate
EXHIBIT A-5 Form of Class A-4
Certificate
EXHIBIT A-6 Form of Class A-1A
Certificate
EXHIBIT A-7 Form of Class XC
Certificate
EXHIBIT A-8 Form of Class XP
Certificate
EXHIBIT A-9 Form of Class A-M
Certificate
EXHIBIT A-10
Form of Class A-J Certificate
EXHIBIT A-11
Form of Class B Certificate
EXHIBIT A-12
Form of Class C Certificate
EXHIBIT A-13
Form of Class D Certificate
EXHIBIT A-14
Form of Class E Certificate
EXHIBIT A-15
Form of Class F Certificate
EXHIBIT A-16
Form of Class G Certificate
EXHIBIT A-17
Form of Class H Certificate
EXHIBIT A-18
Form of Class J Certificate
EXHIBIT A-19
Form of Class K Certificate
EXHIBIT A-20
Form of Class L Certificate
EXHIBIT A-21
Form of Class M Certificate
EXHIBIT A-22
Form of Class N Certificate
EXHIBIT A-23
Form of Class O Certificate
EXHIBIT A-24
Form of Class P Certificate
EXHIBIT A-25
Form of Class R-I Certificate
EXHIBIT A-26
Form of Class R-II Certificate
EXHIBIT A-27
Form of Class V Certificate
EXHIBIT B Form of
Investment Representation Letter
EXHIBIT C-1 Form of Transfer
Affidavit and Agreement Pursuant to Section
5.02(d)(i)(B)
EXHIBIT C-2 Form of Transferor
Certificate Pursuant to Section
5.02(d)(i)(D)
EXHIBIT D Request
for Release
EXHIBIT E Form of
ERISA Representation Letter
EXHIBIT F Form of
Custodial Certification
EXHIBIT G Form of
Trustee Distribution Date Statement
EXHIBIT H Form of
Request for Review
EXHIBIT I Form of
Notice Regarding Purchase Option Exercise
EXHIBIT J Form of
Notice and Certification Regarding Defeasance of Mortgage
Loan
EXHIBIT K Form of
Certification to be Provided with Form 10-K
EXHIBIT L Form of
Certification to be Provided to Depositor
EXHIBIT M Form of
Confidentiality Agreement
EXHIBIT N Form of
Regulation S Certificate
EXHIBIT O
Form of Transfer
Certificate for Exchange or Transfer from
Domestic Global Certificate to Regulation S Global Certificate
During the Restricted Period
EXHIBIT P Form of
Transfer Certificate for Exchange or Transfer from
Domestic Global Certificate to Regulation S Global Certificate
After the Restricted Period
EXHIBIT Q Form of
Transfer Certificate for Exchange or Transfer from
Regulation S Global Certificate to Domestic Global Certificate
SCHEDULE I Mortgage Loan
Schedule
SCHEDULE II Sub-Servicing
Agreements in Effect as of the Closing Date
SCHEDULE III
Schedule of Exceptions under Section 2.02(a)
SCHEDULE IV Class XP Reference
Rates
SCHEDULE V Mortgage Loans
that Initially Pay Interest Only
SCHEDULE VI Mortgage Loans
Containing Additional Debt
SCHEDULE VII
Schedule of Controlling Holders
SCHEDULE VIII
Servicing Criteria to be Addressed in Assessment of Compliance
SCHEDULE IX Additional Form 10-D
Disclosure
SCHEDULE X Additional Form
10-K Disclosure
SCHEDULE XI Form 8-K Disclosure
Information
SCHEDULE XII
Form of Additional Disclosure Notification
<PAGE>
This Pooling and Servicing Agreement (this "Agreement"), dated
and
effective as of October 1, 2006, is by and among BANC OF AMERICA
COMMERCIAL
MORTGAGE INC., as Depositor, BANK OF AMERICA, NATIONAL ASSOCIATION,
as Master
Servicer, MIDLAND LOAN SERVICES, INC., as Special Servicer, and
LASALLE BANK
NATIONAL ASSOCIATION, as Trustee and as REMIC Administrator.
PRELIMINARY STATEMENT:
The Depositor intends to sell Certificates, to be issued
hereunder
in multiple Classes, which in the aggregate will evidence the
entire beneficial
ownership interest in the Trust to be created hereunder.
As provided herein, the Trustee will elect that two segregated
pools
of assets within the Trust Fund (exclusive of the Excess Interest,
and the
Excess Interest Distribution Account) be treated for federal income
tax purposes
as two separate real estate mortgage investment conduits ("REMIC I"
and "REMIC
II", respectively).
REMIC I
As provided herein, the Trustee will elect that the portion of
the
Trust Fund consisting of the Mortgage Loans (exclusive of Excess
Interest) and
certain other related assets subject to this Agreement shall be
treated as a
REMIC for federal income tax purposes, and such segregated asset
pool will be
designated as "REMIC I". The REMIC I Regular Interests listed below
under the
heading "Corresponding REMIC I Regular Interests" constitute
"regular interests"
in REMIC I and the Class R-I Certificates constitute the sole Class
of "residual
interests" in REMIC I created hereunder for purposes of the REMIC
Provisions.
The following table sets forth the Class or Component
designation,
the corresponding REMIC I Regular Interest (the "Corresponding
REMIC I Regular
Interest"), and the Corresponding Components of the Class X
Certificates for
each Class of the REMIC II Certificates (the "Corresponding
Certificates"):
Corresponding
Corresponding
Corresponding
REMIC I
Regular
REMIC I
Components of Class
Certificates
Interests(1) Principal
Balance X
Certificates(1)
------------
------------
-----------------
-----------------
Class A-1
LA-1-1
$ 2,358,000
XA-1-1
LA-1-2
$
2,851,000
XA-1-2
LA-1-3
$ 36,920,000
XA-1-3
LA-1-4
$ 24,871,000
XA-1-4
Class A-2
LA-2-1
$ 17,518,000
XA-2-1
LA-2-2
$ 42,202,000
XA-2-2
LA-2-3
$ 40,771,000
XA-2-3
LA-2-4
$ 53,270,000
XA-2-4
LA-2-5
$ 57,402,000
XA-2-5
LA-2-6
$ 151,766,000
XA-2-6
LA-2-7
$ 48,071,000
XA-2-7
Class A-3
LA-3
$ 46,800,000
XA-3
Class A-AB
LA-AB
$ 56,400,000
XA-AB
Class A-4
LA-4-1
$ 85,369,000
XA-4-1
LA-4-2
$ 30,879,000
XA-4-2
LA-4-3
$ 41,620,000
XA-4-3
LA-4-4
$ 28,786,000
XA-4-4
LA-4-5
$ 40,325,000
XA-4-5
LA-4-6
$ 531,912,000
XA-4-6
Class A-1A
LA-1A-1
$ 105,000
XA-1A-1
LA-1A-2
$ 166,000
XA-1A-2
LA-1A-3
$ 4,002,000
XA-1A-3
LA-1A-4
$ 4,659,000
XA-1A-4
LA-1A-5
$ 4,611,000
XA-1A-5
LA-1A-6
$ 4,446,000
XA-1A-6
LA-1A-7
$ 4,338,000
XA-1A-7
LA-1A-8
$ 4,226,000
XA-1A-8
LA-1A-9
$ 4,304,000
XA-1A-9
LA-1A-10
$ 4,178,000
XA-1A-10
LA-1A-11
$ 4,242,000
XA-1A-11
LA-1A-12
$ 4,082,000
XA-1A-12
LA-1A-13
$ 4,016,000
XA-1A-13
LA-1A-14
$ 3,851,000
XA-1A-14
LA-1A-15
$ 178,972,000
XA-1A-15
Class A-M
LA-M
$ 224,327,000
XA-M
Class A-J
LA-J
$ 179,462,000
XA-J
Class B
LB
$ 47,670,000
XB
Class C
LC-1
$ 4,231,000
XC-1
LC-2
$ 13,342,000
XC-2
LC-3
$ 7,663,000
XC-3
Class D
LD-1
$ 4,094,000
XD-1
LD-2
$ 14,340,000
XD-2
LD-3
$ 9,607,000
XD-3
Class E
LE-1
$ 11,411,000
XE-1
LE-2
$ 11,022,000
XE-2
Class F
LF-1
$ 3,630,000
XF-1
LF-2
$ 18,386,000
XF-2
LF-3
$ 6,025,000
XF-3
Class G
LG-1
$ 4,064,000
XG-1
LG-2
$ 15,565,000
XG-2
Class H
LH-1
$ 17,869,000
XH-1
LH-2
$ 15,780,000
XH-2
Class J
LJ-1
$ 2,970,000
XJ-1
LJ-2
$ 2,638,000
XJ-2
Class K
LK
$ 8,412,000
XK
Class L
LL
$ 5,608,000
XL
Class M
LM
$ 2,804,000
XM
Class N
LN
$ 5,609,000
XN
Class O
LO
$ 8,412,000
XO
Class P
LP
$ 28,041,167
XP
(1) The REMIC I
Regular Interests and the Components of the Class X
Certificates that correspond to any particular Class of REMIC II
Regular
Certificates also correspond to each other and, accordingly,
constitute
the (i)
"Corresponding REMIC I Regular Interests" and (ii)
"Corresponding
Components", respectively, with respect to each other.
REMIC II
As provided herein, the Trustee will elect to treat that portion
of
the Trust Fund consisting of the REMIC I Regular Interests and
certain other
assets subject to this Agreement as a REMIC for federal income tax
purposes, and
such segregated asset pool will be designated as "REMIC II". The
Class A-1,
Class A-2, Class A-3, Class A-AB, Class A-4, Class A-1A, Class XC,
Class XP,
Class A-M, Class A-J, Class B, Class C, Class D, Class E, Class F,
Class G,
Class H, Class J, Class K, Class L, Class M, Class N, Class O and
Class P
Certificates will constitute "regular interests" in REMIC II, and
the Class R-II
Certificates will constitute the sole Class of "residual interests"
in REMIC II
for purposes of the REMIC Provisions.
The following table sets forth the designation, the approximate
initial Pass-Through Rate and the Initial Class Principal Balance
for each of
the Classes of REMIC II Regular Certificates (which are issued by
REMIC II):
Approximate Initial
Initial Class
Designation
Pass-Through Rate
Principal Balance
--------------------------------------------------------------------------------
REMIC II Regular Certificates
Class A-1
5.1850% per annum
$ 67,000,000
Class A-2
5.3170% per annum
$ 411,000,000
Class A-3
5.3900% per annum
$
46,800,000
Class A-AB
5.3790% per annum
$
56,400,000
Class A-4
5.4140% per annum
$ 758,891,111
Class A-1A
5.4150% per annum
$ 230,198,000
Class A-M
5.4480% per annum
$ 224,327,000
Class A-J
5.4770% per annum
$ 179,462,000
Class B
5.4630% per annum
$
47,670,000
Class C
5.5570% per annum (1)
$
25,236,000
Class D
5.6360% per annum (1)
$
28,041,000
Class E
5.7150% per annum (1)
$
22,433,000
Class F
5.8920% per annum (1)
$
28,041,000
Class G
6.0885% per annum (2)
$
19,629,000
Class H
6.2855% per annum (2)
$
33,649,000
Class J
5.1240% per annum (1)
$
5,608,000
Class K
5.1240% per annum (1)
$
8,412,000
Class L
5.1240% per annum (1)
$
5,608,000
Class M
5.1240%
per annum (1)
$
2,804,000
Class N
5.1240% per annum (1)
$
5,609,000
Class O
5.1240% per annum (1)
$
8,412,000
Class P
5.1240% per annum (1)
$
28,041,167
Class XC
0.0535% per annum (3)
$2,243,271,167(4)
Class XP
0.8620% per annum (3)
$2,195,842,000(4)
------------
(1) Initial
Pass-Through Rate. The Pass-Through Rate for the Class C, Class
D,
Class E,
Class F, Class J, Class K, Class L, Class M, Class N, Class O
and
Class P
Certificates for each Distribution Date will not exceed the
Weighted
Average Adjusted Net Mortgage Rate for such Distribution Date.
(2) Initial
Pass-Through Rate. The Pass-Through Rate for the Class G and
Class
H
Certificates for each Distribution Date will equal the Weighted
Average
Adjusted
Net Mortgage Rate for such Distribution Date minus 0.2010% and
0.0040%,
respectively.
(3) The
Pass-Through Rates for each of the Class XC and Class XP
Certificates
will be
calculated in accordance with the definitions of "Class XC
Pass-Through Rate" and "Class XP Pass-Through Rate",
respectively.
(4) The Class XC
and Class XP Certificates will not have Class Principal
Balances;
rather, each such Class of Certificates will accrue interest as
provided
herein on the related Certificate Notional Amount.
The Class R-I and Class R-II Certificates will bear no
Pass-Through
Rate and will have no initial Certificate Principal Balances or
notional
amounts. Any Available Distribution Amount (i) remaining in the
REMIC I
Distribution Account after the distribution of all amounts
distributable in
respect of the REMIC I Regular Interests and (ii) remaining in the
REMIC II
Distribution Account after distributions to the Holders of the
REMIC II Regular
Certificates shall be distributed to the Holders of the Class R-I
and Class R-II
Certificates, respectively.
The
portion of the Trust Fund consisting of the Excess Interest and
the Excess Interest Distribution Account shall be treated as a
portion of the
Grantor Trust for federal income tax purposes and the Class V
Certificates
represent undivided beneficial interests in such portion.
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Special Servicer, the Trustee
and the REMIC
Administrator agree as follows:
ARTICLE I
DEFINITIONS; CERTAIN CALCULATIONS IN RESPECT OF THE MORTGAGE
POOL AND THE CERTIFICATES
Section 1.01 Defined Terms.
Whenever used in this Agreement, including in the Preliminary
Statement, the following words and phrases, unless the context
otherwise
requires, shall have the meanings specified in this Article.
"30/360 Basis": The accrual of interest calculated on the basis of
a
360-day year consisting of twelve 30-day months.
"A/B Loan": Any of the Eastridge Mall A/B Loan, the Camp Group
Portfolio A/B Loan or the Seville Plaza A/B Loan, as
applicable.
"A/B Loan Custodial Account": With respect to the A/B Loans,
the
segregated account or accounts created and maintained by the Master
Servicer
pursuant to Section 3.04(e) on behalf of (i) the Eastridge Mall
Noteholders,
which shall be entitled "Bank of America, National Association, as
Master
Servicer, in trust for the Eastridge Mall Noteholders, as their
interests may
appear"; (ii) the Camp Group Portfolio Noteholders, which shall be
entitled
"Bank of America, National Association, as Master Servicer, in
trust for the
Camp Group Portfolio Noteholders, as their interests may appear";
and (iii) the
Seville Plaza Noteholders, which shall be entitled "Bank of
America, National
Association, as Master Servicer, in trust for the Seville Plaza
Noteholders, as
their interests may appear", as applicable. Any such account shall
at all times
be an Eligible Account.
"A/B Loan Remittance Amount": With respect to any Master
Servicer
Remittance Date and any A/B Loan, an amount equal to (a) all
amounts on deposit
in the related A/B Loan Custodial Account as of the commencement of
business on
such Master Servicer Remittance Date, net of (b) any portion of the
amounts
described in clause (a) of this definition that represents one or
more of the
following: (i) collected Monthly Payments that are due on a Due
Date following
the end of the related Collection Period, (ii) any unscheduled
payments of
principal (including, without limitation, Principal Prepayments,
and interest,
Liquidation Proceeds and Insurance Proceeds received after the end
of the
related Collection Period), (iii) any Prepayment Premiums received
after the end
of the related Collection Period, (iv) any amounts payable or
reimbursable to
any Person from the related A/B Loan Custodial Account pursuant to
any of
clauses (ii) through (xvii) of Section 3.05(f), (v) any Excess
Liquidation
Proceeds that are unrelated to such A/B Loan, and (vi) any amounts
deposited
into the related A/B Loan Custodial Account in error, provided
that, with
respect to the Master Servicer Remittance Date that occurs in the
same calendar
month as the Final Distribution Date, the A/B Loan Remittance
Amount will be
calculated without regard to clauses (b)(i), (b)(ii) and (b)(iii)
of this
definition.
"A/B Loan REO Account": As defined in Section 3.16(b).
"Accrued Certificate Interest": With respect to any Class of
REMIC
II Regular Certificates, for any Distribution Date, one month's
interest at the
Pass-Through Rate applicable to such Class of Certificates for such
Distribution
Date, accrued on the related Class Principal Balance of such Class
of
Certificates outstanding immediately prior to such Distribution
Date and, with
respect to the Class XC and Class XP Certificates for any
Distribution Date, the
sum of the Accrued Component Interest for the related Interest
Accrual Period
for all of their respective Components for such Distribution Date.
For the
avoidance of doubt, the Accrued Certificate Interest in respect of
any Class of
REMIC II Regular Certificates for any Distribution Date shall be
deemed to have
accrued during the applicable Interest Accrual Period. Accrued
Certificate
Interest shall be calculated on the basis of a 360-day year
consisting of twelve
30-day months.
"Accrued Component Interest": With respect to each Component of
the
Class XC or Class XP Certificates for any Distribution Date, one
month's
interest at the Class XC Strip Rate or Class XP Strip Rate
applicable to such
Component for such Distribution Date, accrued on the Component
Notional Amount
of such Component outstanding immediately prior to such
Distribution Date.
Accrued Component Interest shall be calculated as described in the
definitions
of Class XC Strip Rate or Class XP Strip Rate with respect to any
applicable
Component and any Distribution Date, and shall be deemed to accrue
during the
calendar month preceding the month in which such Distribution Date
occurs.
"Actual/360 Basis": The accrual of interest calculated on the
basis
of the actual number of days elapsed during any calendar month (or
other
applicable recurring accrual period) in a year assumed to consist
of 360 days.
"Additional Collateral": Any non-real property collateral
pledged
and/or delivered by or on behalf of the related Mortgagor and held
by the
related Mortgagee to secure payment on any Loan.
"Additional Disclosure Notification": The form of notification to
be
included with any Additional Form 10-D Disclosure, Additional Form
10-K
Disclosure or Additional Form 8-K Disclosure, which is attached
hereto as
Schedule XII.
"Additional Exclusions": Exclusions relating to terrorist or
similar
acts in addition to those customarily found in insurance policies
for Mortgaged
Properties prior to September 11, 2001.
"Additional Form 8-K Disclosure": As defined in Section 11.07.
"Additional Form 10-D Disclosure": As defined in Section 11.04.
"Additional Form 10-K Disclosure": As defined in Section 11.05.
"Additional Master Servicing Compensation": As defined in
Section
3.11(b).
"Additional Servicer": Each Affiliate of the Master Servicer
that
services any of the Mortgage Loans and each Person who is not an
Affiliate of
the Master Servicer, other than the Special Servicer and the
Trustee, who
Services 10% or more of the Mortgage Loans.
"Additional Special Servicing Compensation": As defined in
Section
3.11(d).
"Additional Trust Fund Expense": Any expense incurred or
shortfall
experienced with respect to the Trust Fund and not otherwise
included in the
calculation of a Realized Loss, that would result in the Holders of
the
Principal Pay Certificates receiving less than the full amount of
principal
and/or interest to which they are entitled on any Distribution
Date.
"Adjusted Net Mortgage Rate": With respect to any Loan or REO
Loan,
for any Distribution Date, the annualized rate at which interest
would have to
accrue thereon on a 30/360 Basis during the most recently ended
calendar month
to produce the actual amount of interest accrued (or, if such Loan
or REO Loan,
as the case may be, is prepaid, in whole or in part, or otherwise
liquidated
during such calendar month, that otherwise would have accrued) in
respect of
such Loan or REO Loan, as the case may be, at the related Net
Mortgage Rate in
effect for such Loan or REO Loan during such calendar month. Such
rate shall be
calculated by multiplying (i) the Net Mortgage Rate (and, in the
case of an ARD
Loan after its Anticipated Repayment Date, without giving effect to
any Excess
Interest or the Excess Interest Rate) by (ii) the actual number of
days of
accrued interest for the related period for such Loan or REO Loan,
divided by
30; provided, however, that with respect to such Loan or REO Loan,
the Adjusted
Net Mortgage Rate for the one-month period (a) prior to the Due
Dates in January
and February in any year that is not a leap year or in February in
any year that
is a leap year (unless, in either case, the related Distribution
Date is the
final Distribution Date) will be the per annum rate stated in the
related
Mortgage Note as of the Closing Date less the related
Administrative Fee Rate
and (b) prior to the Due Date in March (or February, if the related
Distribution
Date is the final Distribution Date) will be determined inclusive
of one day of
interest retained for each of the one-month periods prior to the
Due Dates in
January and February in any year that is not a leap year or
February in any year
that is a leap year.
"Administrative Fee Rate": With respect to each Mortgage Loan
and
REO Loan, as specified in the Mortgage Loan Schedule, being the sum
of the
related Master Servicing Fee Rate and the Trustee Fee Rate.
"Advance": Any P&I Advance or Servicing Advance.
"Advance Interest": Interest accrued on any Advance at the
Reimbursement Rate and payable to the Master Servicer (or any
Sub-Servicer), the
Special Servicer or the Trustee, as the case may be, all in
accordance with
Section 3.11(g) or Section 4.03(d), as applicable.
"Adverse Grantor Trust Event": Either: (i) any impairment of
the
status of the Grantor Trust as a "grantor trust" under subpart E,
Part I of
subchapter J of the Code; or (ii) the imposition of a tax upon the
Grantor Trust
or any of its assets or transactions.
"Adverse Rating Event": With respect to any Class of Rated
Certificates and each Rating Agency that has assigned a rating
thereto, as of
any date of determination, the qualification, downgrade or
withdrawal of the
rating then assigned to such Class of Rated Certificates by such
Rating Agency
(or the placing of such Class of Rated Certificates on "negative
credit watch"
status in contemplation of any such action with respect
thereto).
"Adverse REMIC Event": With respect to each of REMIC I and REMIC
II,
either (i) the endangerment of the status of such REMIC as a REMIC
or (ii),
except as permitted by Section 3.17(a), the imposition of a tax
upon such REMIC
or any of its assets or transactions (including, without
limitation, the tax on
prohibited transactions as defined in Section 860F(a)(2) of the
Code and the tax
on certain contributions set forth in Section 860G(d) of the
Code).
"Affiliate": With respect to any specified Person, any other
Person
controlling or controlled by or under common control with such
specified Person.
For the purposes of this definition, "control" when used with
respect to any
specified Person means the power to direct the management and
policies of such
Person, directly or indirectly, whether through the ownership of
voting
securities, by contract or otherwise and the terms "controlling"
and
"controlled" have the meanings correlative to the foregoing.
"Agreement": This Pooling and Servicing Agreement, together with
all
amendments hereof and supplements hereto.
"Anticipated Repayment Date": With respect to any ARD Loan, the
date
specified on the related Mortgage Note, as of which Excess Interest
shall begin
to accrue on such Loan, which date is prior to the Stated Maturity
Date for such
Loan.
"Applicable State Law": For purposes of Article X, the
Applicable
State Law shall be (a) the laws of any state in which the Corporate
Trust Office
of the Trustee is located, (b) the laws of the states in which any
loan
documents are held and/or any REO Properties are located, (c) such
other state
and local law whose applicability shall have been brought to the
attention of
the REMIC Administrator by either (i) an Opinion of Counsel
delivered to it or
(ii) written notice from the appropriate taxing authority as to
the
applicability of such state law, and (d) such other state or local
law as to
which the REMIC Administrator has actual knowledge of
applicability.
"Appraisal": With respect to any Mortgaged Property or REO
Property
as to which an appraisal is required to be performed pursuant to
the terms of
this Agreement, a narrative appraisal complying with Title XI of
FIRREA (or, in
the case of a Loan or REO Loan with a Stated Principal Balance as
of the date of
such appraisal of $2,000,000 or less, at the Special Servicer's
option, either a
limited appraisal and a summary report or an internal valuation
prepared by the
Special Servicer) that indicates the "market value" of the subject
property, as
defined in 12 C.F.R. ss.225.62(g), and is conducted by a Qualified
Appraiser (or
by the Special Servicer in the case of a limited appraisal and
summary report or
internal valuation with respect to a Loan or an REO Loan with a
Stated Principal
Balance as of the date of such appraisal or valuation of $2,000,000
or less).
"Appraisal Reduction Amount": With respect to any Required
Appraisal
Loan, an amount (calculated as of the Determination Date by the
Special Servicer
immediately following the later of the date on which the most
recent relevant
Appraisal acceptable for purposes of Section 3.19(b) was obtained
by the Special
Servicer pursuant to this Agreement and the date of the most recent
Appraisal
Trigger Event with respect to such Required Appraisal Loan) equal
to the excess,
if any, of:
(1) the sum of (a) the Stated Principal Balance of such
Required
Appraisal Loan as of such Determination Date, (b) to the extent not
previously
advanced by or on behalf of the Master Servicer, or the Trustee,
all unpaid
interest (net of Default Interest) accrued on such Required
Appraisal Loan
through the most recent Due Date prior to such Determination Date,
(c) all
unpaid Master Servicing Fees, Special Servicing Fees, Trustee Fees
and
Additional Trust Fund Expenses accrued with respect to such
Required Appraisal
Loan, (d) all related unreimbursed Advances made by or on behalf of
the Master
Servicer, the Special Servicer or the Trustee with respect to such
Required
Appraisal Loan and reimbursable out of the Trust Fund and all
Advances related
to such Required Appraisal Loan that were not reimbursed out of
collections on
such Required Appraisal Loan, together with all unpaid Advance
Interest accrued
on such Advances, and (e) all currently due but unpaid real estate
taxes and
assessments, insurance premiums and, if applicable, ground rents in
respect of
the related Mortgaged Property or REO Property, as applicable, for
which neither
the Master Servicer nor the Special Servicer holds any Escrow
Payments or
Reserve Funds; over
(2) the sum of (x) the excess, if any, of (i) 90% of the
Appraised
Value of the related Mortgaged Property or REO Property (subject to
such
downward adjustments as the Special Servicer may deem appropriate
in accordance
with the Servicing Standard (without implying any obligation to do
so) based
upon its review of the related Appraisal and such other information
as the
Special Servicer deems appropriate), as applicable, as determined
by the most
recent relevant Appraisal acceptable for purposes of Section
3.19(b), over (ii)
the amount of any obligation(s) secured by any liens on such
Mortgaged Property
or REO Property, as applicable, that are prior to the lien of such
Required
Appraisal Loan, and (y) any Escrow Payments, Reserve Funds and/or
Letters of
Credit held by the Master Servicer or the Special Servicer with
respect to such
Required Appraisal Loan, the related Mortgaged Property or any
related REO
Property (exclusive of any such items that are to be applied to
real estate
taxes, assessments, insurance premiums and/or ground rents or that
were taken
into account in determining the Appraised Value of the related
Mortgaged
Property or REO Property, as applicable, referred to in clause
(2)(x)(i) of this
definition).
Notwithstanding the foregoing, if (i) an Appraisal Trigger
Event
occurs with respect to any Loan, (ii) either (A) no Appraisal has
been obtained
or conducted, as applicable in accordance with Section 3.19(b),
with respect to
the related Mortgaged Property during the 12 month period prior to
the date of
such Appraisal Trigger Event or (B) there shall have occurred since
the date of
the most recent Appraisal a material change in the circumstances
surrounding the
related Mortgaged Property that would, in the Special Servicer's
judgment,
materially affect the value of the property, and (iii) no new
Appraisal is
obtained or conducted, as applicable in accordance with Section
3.19(b), within
60 days after such Appraisal Trigger Event, then (x) until such new
Appraisal is
obtained or conducted, as applicable in accordance with Section
3.19(b), the
Appraisal Reduction Amount shall equal 25% of the Stated Principal
Balance of
such Required Appraisal Loan, and (y) upon receipt or performance,
as applicable
in accordance with Section 3.19(b), of such new Appraisal by the
Special
Servicer, the Appraisal Reduction Amount for such Required
Appraisal Loan will
be recalculated in accordance with the preceding sentence of this
definition.
Also notwithstanding the foregoing, if and when any
Cross-Collateralized Mortgage Loan becomes a Required Appraisal
Loan, an
Appraisal Reduction Amount shall be calculated for the entire
Cross-Collateralized Set to which that particular
Cross-Collateralized Mortgage
Loan belongs as if such Cross-Collateralized Set was a single
mortgage loan
secured by multiple properties, and any resulting Appraisal
Reduction Amount for
such Cross-Collateralized Set shall be allocated among the
respective
Cross-Collateralized Mortgage Loans forming that set on a pro rata
basis in
accordance with the respective Stated Principal Balances of those
Loans.
In addition, notwithstanding the foregoing and for the avoidance
of
doubt, for purposes of calculating Appraisal Reduction Amounts for
determining
change of control with respect to any A/B Loan, references to the
Stated
Principal Balance will be to the entire Stated Principal Balance
thereof (i.e.,
the aggregate Stated Principal Balances of the related Mortgage
Loan and the
related Note B).
For the avoidance of doubt and for purposes of calculating
Appraisal
Reduction Amounts in connection with any P&I Advance required
to be made under
this Agreement for a Mortgage Loan constituting a part of an A/B
Loan, such
calculation shall be made based upon and allocated solely to the
Stated
Principal Balance of the Mortgage Loan contained in such A/B Loan
and shall
exclude the Stated Principal Balance of the related Note B.
"Appraisal Trigger Event": With respect to any Loan, any of the
following events:
(i) such Loan becomes a Modified Loan;
(ii) any Monthly Payment with respect to such Loan remains
unpaid for 60 days past the Due Date for such payment (or for
such
shorter period at the end of which such delinquency will become
a
Servicing Transfer Event); provided, however, solely in the case
of
a delinquent Balloon Payment and if (x) the related Borrower is
actively seeking a refinancing commitment, (y) the related
Borrower
continues to make payments in the amount of its Monthly Payment,
and
(z) subject to Section 3.21(f), the Directing Certificateholder
consents, failure to pay such Balloon Payment during such
60-day
period shall not constitute an Appraisal Trigger Event if the
related Mortgagor has delivered to the Master Servicer, on or
before
the 60th day after the Due Date of such Balloon Payment, a
refinancing commitment reasonably acceptable to the Master
Servicer,
for such longer period, not to exceed 120 days beyond such Due
Date,
during which the refinancing would occur;
(iii) the passage of 60 days after the Special Servicer
receives notice that the Mortgagor under such Loan becomes the
subject of bankruptcy, insolvency or similar proceedings that
remain
undischarged and undismissed;
(iv) the passage of 60 days after the Special Servicer
receives
notice that a receiver or similar official is appointed
with respect to the related Mortgaged Property;
(v) the related Mortgaged Property becomes an REO Property; or
(vi) if a Loan has been extended three times, upon the
sixtieth day after the third extension.
"Appraised Value": With respect to any Mortgaged Property and as
of
any date of determination, the appraised value of a Mortgaged
Property or REO
Property based upon the most recent Appraisal obtained or
conducted, as
appropriate, pursuant to this Agreement.
"Approval Provisions": With respect to any Loan and the
provisions
set forth in Section 3.21(e), the approvals and consents and the
time frames for
such approvals and consents necessary in connection with the taking
of a Special
Action or the extension of the maturity date of a Loan set forth
below (in each
case subject to the limitations set forth in Section 3.21(e) and
Section
3.21(f):
(i) with respect to any Performing Loan, the Master Servicer
shall obtain the approval or consent of the Special Servicer in
connection with a Special Action;
(ii) with respect to (A) any Non-Partitioned Loan or Post CAP
A/B Loan that is a Performing Loan that involves an extension of
the
maturity date of such Loan or (B) in connection with a Special
Action for any Non-Partitioned Loan or Post CAP A/B Loan that is
a
Performing Loan, the Master Servicer shall obtain the approval
and
consent of the Special Servicer and the Special Servicer shall
obtain the approval and consent of the Directing
Certificateholder;
(iii) with respect to any Non-Partitioned Loan or Post CAP A/B
Loan that is a Specially Serviced Loan, the Special Servicer
shall
obtain the approval and consent of the Directing
Certificateholder
in connection with a Special Action;
(iv) with respect to any A/B Loan, during any time period that
a related Control Appraisal Period does not exist, the Master
Servicer, if such A/B Loan is a then Performing Loan, shall seek
the
approval and consent of the Special Servicer, and the Special
Servicer shall then obtain the approval and consent of the
related
Controlling Holder in connection with a Special Action; and
(v) with respect to any A/B Loan, during any time period that
a related Control Appraisal Period does not exist, the Special
Servicer, if such A/B Loan is a then Specially Serviced Loan,
shall
obtain the approval and consent of the related Controlling Holder
in
connection with a Special Action.
With respect to any extension or Special Action set forth in
clauses
(i), (ii) and (iv) of this definition, the Special Servicer shall
respond to the
Master Servicer in writing (which may be via e-mail or facsimile)
of its
decision to grant or deny the Master Servicer's request for
approval and consent
within ten Business Days of its receipt of such request (except as
provided in
Section 3.08) and all information reasonably requested by the
Special Servicer,
as such time frame may be extended if the Special Servicer is
required to seek
the consent of the Directing Certificateholder, any Controlling
Holder or any
Rating Agency. If the Special Servicer so fails to respond to the
Master
Servicer within the time period referenced in the immediately
preceding
sentence, such approval and consent shall be deemed granted. With
respect to any
Special Action described in clauses (ii) and (iii) of this
definition, the
Directing Certificateholder shall respond to the Special Servicer
within ten
Business Days of its receipt of such request in writing (which may
be via e-mail
or facsimile) and such request will be deemed granted if the
Directing
Certificateholder does not respond in such time frame. With respect
to any
Special Action described in clauses (iv) and (v) of this
definition, the related
Controlling Holder shall respond in writing (which may be via
e-mail or
facsimile) to the Special Servicer within ten Business Days of its
receipt of a
request for its approval and consent, and such request will be
deemed granted if
the required party does not respond in such time frame.
"ARD Loan": Any Mortgage Loan that provides for changes in
payments
and accrual of interest, including the capture of Excess Interest
from the
related mortgaged property and an increase in the applicable
Mortgage Rate, if
it is not paid in full by the Anticipated Repayment Date. Each
Mortgage Loan
that is an ARD Loan is identified on the Mortgage Schedule as such
pursuant to
clause (xv) under the definition of Mortgage Loan Schedule.
"Asset Status Report": As defined in Section 3.21(d).
"Assignment of Leases": With respect to any Mortgaged Property,
any
assignment of leases, rents and profits or similar document or
instrument
executed by the Mortgagor in connection with the related Loan, as
amended,
modified, renewed or extended through the date hereof and from time
to time
hereafter.
"Assumed Monthly Payment": With respect to any Balloon Loan for
its
Stated Maturity Date (provided that such Loan has not been paid in
full, and no
other Liquidation Event has occurred in respect thereof, on or
before the end of
the Collection Period in which such Stated Maturity Date occurs)
and for any
subsequent Due Date on which such Loan remains outstanding and part
of the Trust
Fund, if no Monthly Payment (other than a delinquent Balloon
Payment) is due for
such Due Date, the scheduled monthly payment of principal and/or
interest deemed
to be due in respect thereof on such Due Date equal to the amount
that would
have been due in respect of such Loan on such Due Date if it had
been required
to continue to accrue interest (exclusive, in the case of an ARD
Loan after its
Anticipated Repayment Date, of Excess Interest) in accordance with
its terms,
and to pay principal in accordance with the amortization schedule
(if any), in
effect immediately prior to, and without regard to the occurrence
of, its most
recent scheduled maturity date (as such terms and amortization
schedule may have
been modified, and such maturity date may have been extended, in
connection with
a bankruptcy or similar proceeding involving the related Mortgagor
or a
modification, waiver or amendment of such Loan granted or agreed to
by the
Master Servicer or Special Servicer pursuant to Section 3.20). With
respect to
any REO Loan, for any Due Date therefor as of which the related REO
Property
remains part of the Trust Fund, the scheduled monthly payment of
principal
and/or interest deemed to be due in respect thereof on such Due
Date equal to
the Monthly Payment that was due (or, in the case of a Balloon Loan
described in
the preceding sentence of this definition, the Assumed Monthly
Payment that was
deemed due) in respect of the related Loan on the last Due Date
prior to its
becoming an REO Loan.
"Available Distribution Amount": With respect to any
Distribution
Date and each Mortgage Loan and, in the case of an A/B Loan (other
than with
respect to a P&I Advance required to be made by the Trustee)
only to the extent
received by the Trustee pursuant to the related Intercreditor
Agreement, an
amount equal to (a) the balance on deposit in the Certificate
Account and the
Distribution Account as of the close of business on the related
Determination
Date, including, without limitation, if and to the extent on
deposit therein as
of such time, the Master Servicer Remittance Amount for the related
Master
Servicer Remittance Date, any P&I Advances made by the Master
Servicer or the
Trustee to cover uncollected Monthly Payments due and/or Assumed
Monthly
Payments deemed due during the related Collection Period, any
Compensating
Interest Payments made by the Master Servicer to cover Prepayment
Interest
Shortfalls incurred during the related Collection Period, the
portion of Loss of
Value Payments deposited into the Certificate Account pursuant to
Section
3.05(g) and for the Distribution Date occurring in each March (or
February, if
the related Distribution Date is the final Distribution Date), the
related
Withheld Amounts remitted to the REMIC I Distribution Account
pursuant to
Section 4.05, net of (b) any portion of the amounts described in
clause (a) of
this definition that represents one or more of the following: (i)
collected
Monthly Payments that are due on a Due Date following the end of
the related
Collection Period, (ii) any payments of principal (including,
without
limitation, Principal Prepayments) and interest, Liquidation
Proceeds and
Insurance Proceeds received after the end of the related Collection
Period,
(iii) Prepayment Premiums, (iv) Excess Interest, (v) any amounts
payable or
reimbursable to any Person from the REMIC I Distribution Account
pursuant to any
of clauses (ii) through (vi) of Section 3.05(b), (vi) any amounts
deposited into
the REMIC I Distribution Account in error, (vii) all funds released
from the
Excess Liquidation Proceeds Account with respect to such
Distribution Date,
(viii) any amounts payable or reimbursable to any Person from the
Certificate
Account pursuant to clauses (ii) through (xvii) of Section 3.05(a),
and (ix)
with respect to each Mortgage Loan that accrues interest on an
Actual/360 Basis
and any Distribution Date relating to the one-month period
preceding the
Distribution Date in each February (and in any January of a year
that is not a
leap year) (unless, in either case, the related Distribution Date
is the final
Distribution Date), an amount equal to the related Withheld Amount
pursuant to
Section 4.05; provided that the Available Distribution Amount for
the Final
Distribution Date shall be calculated without regard to clauses
(b)(i), (b)(ii)
and (b)(iii) of this definition.
"BACM": Banc of America Commercial Mortgage Inc., or its
successors
in interest.
"Balloon Loan": Any Loan that by its original terms or by virtue
of
any modification entered into as of the Closing Date (or, in the
case of a
Replacement Mortgage Loan, as of the related date of substitution)
provides for
an amortization schedule extending beyond its Stated Maturity Date
and as to
which, in accordance with such terms, the Monthly Payment due on
its Stated
Maturity Date is at least two times larger than the Monthly Payment
due on the
Due Date next preceding its Stated Maturity Date.
"Balloon Payment": With respect to any Balloon Loan as of any
date
of determination, the Monthly Payment payable on the Stated
Maturity Date of
such Loan.
"Balloon Payment Interest Shortfall": With respect to any
Balloon
Loan that is included as part of the Trust Fund, with a Stated
Maturity Date
that occurs after, or that provides for a grace period for its
Balloon Payment
that runs past, the Determination Date in any calendar month, and
as to which
the Balloon Payment is actually received after the Determination
Date in such
calendar month (but no later than its Stated Maturity Date or, if
there is an
applicable grace period, beyond the end of such grace period), the
amount of
interest, to the extent not collected from the related
Determination Date, that
would have accrued on the principal portion of such Balloon Payment
during the
period from the related Stated Maturity Date to, but not including,
the first
day of the calendar month following the month of maturity (less the
amount of
related Master Servicing Fees that would have been payable from
that uncollected
interest and, if applicable, exclusive of any portion of that
uncollected
interest that would have been Default Interest).
"Bank": As defined in Section 2.07.
"Bank of America": Bank of America, National Association, or
its
successors in interest.
"Bankruptcy Code": The federal Bankruptcy Code, as amended from
time
to time (Title 11 of the United States Code).
"BCRE": Barclays Capital Real Estate Inc., and its successors
in
interest.
"Base Interest Fraction" As defined in Section 4.01(c).
"Base Prospectus": That certain prospectus dated September 28,
2006,
relating to trust funds established by the Depositor and publicly
offered
mortgage pass-through certificates evidencing interests
therein.
"Bear Stearns": Bear Stearns Commercial Mortgage, Inc., and its
successors in interest.
"Book-Entry Certificate": Any Certificate registered in the name
of
the Depository or its nominee.
"Borrower": Individually and collectively, as the context may
require, the obligor or obligors under a Loan, including any Person
that has not
signed the related Mortgage Note but owns an interest in the
related Mortgaged
Property, which interest has been encumbered to secure such
Loan.
"Breach": With respect to any Mortgage Loan, any breach of
representation or warranty made by the related Mortgage Loan Seller
pursuant to
Section 4(b) of the related Mortgage Loan Purchase and Sale
Agreement.
"Business Day": Any day other than a Saturday, a Sunday or a day
on
which banking institutions in Illinois, Ohio, Pennsylvania, New
York, any city
in which the office of the Certificate Registrar is located or any
city in which
the Corporate Trust Office of the Trustee or principal place of
business of the
Master Servicer or Special Servicer is located are authorized or
obligated by
law or executive order to remain closed; provided that for purposes
of
administering the Puerto Rico Self Storage Portfolio Mortgage Loan
only, a day
on which banking institutions in Puerto Rico are authorized or
obligated by law
or executive order to remain closed shall not be a Business
Day.
"Camp Group Portfolio A/B Loan": The Camp Group Portfolio Note
A
Mortgage Loan together with the Camp Group Portfolio Note B.
References herein
to the Camp Group Portfolio A/B Loan shall be construed to refer to
the
aggregate indebtedness under the Camp Group Portfolio Note A and
the Camp Group
Portfolio Note B.
"Camp Group Portfolio Control Appraisal Period": The meaning
assigned to "Control Appraisal Period" in the Camp Group Portfolio
Intercreditor
Agreement.
"Camp Group Portfolio Controlling Holder": The meaning assigned
to
"Controlling Holder" in the Camp Group Portfolio Intercreditor
Agreement. The
initial Camp Group Portfolio Controlling Holder shall be set forth
on Schedule
VII hereto.
"Camp Group Portfolio Intercreditor Agreement": The Agreement
Among
Note Holders dated as of October 1, 2006 by and between the Camp
Group Portfolio
Note A Holder and the Camp Group Portfolio Note B Holder relating
to the
relative rights of such holders, as the same may be further amended
from time to
time in accordance with the terms thereof.
"Camp Group Portfolio Mortgaged Property": The property that
secures
the Camp Group Portfolio A/B Loan.
"Camp Group Portfolio Note A": With respect to the Camp Group
Portfolio Note A Mortgage Loan, the related Mortgage Note that is
included in
the Trust Fund.
"Camp Group Portfolio Note A Holder": The holder of the Camp
Group
Portfolio Note B, initially Bank of America, National
Association.
"Camp Group Portfolio Note A Mortgage Loan": The Mortgage Loan
identified as Loan No. 3402523 in the Mortgage Loan Schedule,
which, together
with the Camp Group Portfolio Note A, is secured by a Mortgage on
the Camp Group
Portfolio Mortgaged Property.
"Camp Group Portfolio Note B": The Mortgage Note related to the
Camp
Group Portfolio A/B Loan that is not included in the Trust, which
is
subordinated in right of payment to the Camp Group Portfolio Note A
to the
extent set forth in the Camp Group Portfolio Intercreditor
Agreement.
"Camp Group Portfolio Note B Holder": The holder of the Camp
Group
Portfolio Note B, initially Bank of America, National
Association.
"Camp Group Portfolio Noteholders": The holder of the Mortgage
Note
for the Camp Group Portfolio Note A Mortgage Loan and the Camp
Group Portfolio
Note B Holder.
"CERCLA": The Comprehensive Environmental Response, Compensation
and
Liability Act of 1980, as amended.
"Certificate": Any one of the Depositor's Commercial Mortgage
Pass-Through Certificates, Series 2006-5 as executed by the Trustee
and
authenticated and delivered hereunder by the Certificate
Registrar.
"Certificate Account": The segregated account or accounts
created
and maintained by the Master Servicer pursuant to Section 3.04(a)
on behalf of
the Trustee in trust for Certificateholders, which shall be
entitled "Bank of
America, National Association, as Master Servicer, in trust for the
registered
holders of Banc of America Commercial Mortgage Inc., Commercial
Mortgage
Pass-Through Certificates, Series 2006-5, Certificate Account".
"Certificate Factor": With respect to any Class of REMIC II
Regular
Certificates, as of any date of determination, a fraction,
expressed as a
decimal carried to at least eight places, the numerator of which is
the then
related Class Principal Balance or Class Notional Amount, as the
case may be,
and the denominator of which is the related Initial Class Principal
Balance or
Initial Class Notional Amount, as the case may be.
"Certificate Notional Amount": With respect to any Class X
Certificate, as of any date of determination, the then notional
amount of such
Certificate equal to the product of (a) the Percentage Interest
evidenced by
such Certificate, multiplied by (b) the then Class Notional Amount
of such Class
X Certificate, as applicable.
"Certificate Owner": With respect to a Book-Entry Certificate,
the
Person who is the beneficial owner of such Certificate as reflected
on the books
of the Depository or on the books of a Depository Participant or on
the books of
an indirect participating brokerage firm for which a Depository
Participant acts
as agent.
"Certificate Principal Balance": With respect to any Principal
Pay
Certificate, as of any date of determination, the then outstanding
principal
amount of such Certificate equal to the product of (a) the
Percentage Interest
evidenced by such Certificate, multiplied by (b) the then Class
Principal
Balance of the Class of Certificates to which such Certificate
belongs.
"Certificate Register" and "Certificate Registrar": The
register
maintained and the registrar appointed pursuant to Section
5.02.
"Certificateholder" or "Holder": The Person in whose name a
Certificate is registered in the Certificate Register; provided
that solely for
the purposes of giving any consent, approval or waiver pursuant to
this
Agreement, any Certificate registered in the name of the Depositor,
any Mortgage
Loan Seller, the Master Servicer, the Special Servicer, the REMIC
Administrator
or the Trustee or any Affiliate of any of them shall be deemed not
to be
outstanding, and the Voting Rights to which any of them is entitled
shall not be
taken into account in determining whether the requisite percentage
of Voting
Rights necessary to effect any such consent, approval or waiver has
been
obtained, except as otherwise provided in Sections 7.04 and
12.01(b) or except
in connection with the Controlling Class exercising its rights
under Section
3.23, or unless such Persons collectively own an entire Class of
Certificates
and only the Holders of such Class of Certificates are entitled to
grant such
consent, approval or waiver. The Certificate Registrar shall be
entitled to
request and rely upon a certificate of the Depositor, the Master
Servicer, the
Special Servicer or, if other than the Trustee, the REMIC
Administrator, as the
case may be, in determining whether or not a Certificate is
registered in the
name of an Affiliate of such Person. All references herein to
"Holders" or
"Certificateholders" shall reflect the rights of Certificate Owners
as they may
indirectly exercise such rights through the Depository and the
Depository
Participants, except as otherwise specified herein; provided,
however, that the
parties hereto shall be required to recognize as a "Holder" or
"Certificateholder" only the Person in whose name a Certificate is
registered in
the Certificate Register.
"Certification Parties": As defined in Section 11.06.
"Certifying Person": As defined in Section 11.06.
"Certifying Servicer" means the Master Servicer, the Special
Servicer, the Trustee or an Additional Servicer, as the case may
be.
"Citigroup": Citigroup Global Markets Realty Corp., and its
successors in interest.
"Class": Collectively, all of the Certificates bearing the same
alphabetical and, if applicable, numerical Class designation, and
each REMIC I
Regular Interest and Corresponding Component.
"Class A Certificates": Any one of the Class A Senior
Certificates
and the Class A Junior Certificates.
"Class A Junior Certificates": The Class A-M and Class A-J
Certificates.
"Class A Senior Certificate": Any one of the Class A-1, Class
A-2,
Class A-3, Class A-AB, Class A-4 and Class A-1A Certificates.
"Class A-1 Certificate": Any one of the Certificates with a
"Class
A-1" designation on the face thereof, substantially in the form of
Exhibit A-1
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class A-1 Pass-Through Rate": A fixed per annum rate equal to
5.1850%.
"Class A-1A Certificate": Any one of the Certificates with a
"Class
A-1A" designation on the face thereof, substantially in the form of
Exhibit A-6
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class A-1A Pass-Through Rate": A per annum rate equal to
5.4150%.
"Class A-2 Certificate": Any one of the Certificates with a
"Class
A-2" designation on the face thereof, substantially in the form of
Exhibit A-2
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class A-2 Pass-Through Rate": A fixed per annum rate equal to
5.3170%.
"Class A-3 Certificate": Any one of the Certificates with a
"Class
A-3" designation on the face thereof, substantially in the form of
Exhibit A-3
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class A-3 Pass-Through Rate": A fixed per annum rate equal to
5.3900%.
"Class A-4 Certificate": Any one of the Certificates with a
"Class
A-4" designation on the face thereof, substantially in the form of
Exhibit A-5
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class A-4 Pass-Through Rate": A per annum rate equal to
5.4140%.
"Class A-AB Certificate": Any one of the Certificates with a
"Class
A-AB" designation on the face thereof, substantially in the form of
Exhibit A-4
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class A-AB Pass-Through Rate": A fixed per annum rate equal to
5.3790%.
"Class A-J Certificate": Any one of the Certificates with a
"Class
A-J" designation on the face thereof, substantially in the form of
Exhibit A-10
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class A-J Pass-Through Rate": A per annum rate equal to
5.4770%.
"Class A-M Certificate": Any one of the Certificates with a
"Class
A-M" designation on the face thereof, substantially in the form of
Exhibit A-9
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class A-M Pass-Through Rate": A per annum rate equal to
5.4480%.
"Class B Certificate": Any one of the Certificates with a "Class
B"
designation on the face thereof, substantially in the form of
Exhibit A-11
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class B Pass-Through Rate": A per annum rate equal to 5.4630%.
"Class C Certificate": Any one of the Certificates with a "Class
C"
designation on the face thereof, substantially in the form of
Exhibit A-12
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class C Pass-Through Rate": A per annum rate equal to 5.5570%;
provided, however, that the Class C Pass-Through Rate shall not
exceed the
Weighted Average Adjusted Net Mortgage Rate for the related
Distribution Date.
"Class D Certificate": Any one of the Certificates with a "Class
D"
designation on the face thereof, substantially in the form of
Exhibit A-13
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class D Pass-Through Rate": A per annum rate equal to 5.6360%;
provided, however, that the Class D Pass-Through Rate shall not
exceed the
Weighted Average Adjusted Net Mortgage Rate for the related
Distribution Date.
"Class E Certificate": Any one of the Certificates with a "Class
E"
designation on the face thereof, substantially in the form of
Exhibit A-14
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class E Pass-Through Rate": A per annum rate equal to 5.7150%;
provided, however, that the Class E Pass-Through Rate shall not
exceed the
Weighted Average Adjusted Net Mortgage Rate for the related
Distribution Date.
"Class F Certificate": Any one of the Certificates with a "Class
F"
designation on the face thereof, substantially in the form of
Exhibit A-15
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class F Pass-Through Rate": A per annum rate equal to 5.8920%;
provided, however, that the Class F Pass-Through Rate shall not
exceed the
Weighted Average Adjusted Net Mortgage Rate for the related
Distribution Date.
"Class G Certificate": Any one of the Certificates with a "Class
G"
designation on the face thereof, substantially in the form of
Exhibit A-16
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class G Pass-Through Rate": A per annum rate equal to the
Weighted
Average Adjusted Net Mortgage Rate for the related Distribution
Date less
0.2010%.
"Class H Certificate": Any one of the Certificates with a "Class
H"
designation on the face thereof, substantially in the form of
Exhibit A-17
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class H Pass-Through Rate": A per annum rate equal to the
Weighted
Average Adjusted Net Mortgage Rate for the related Distribution
Date less
0.0040%.
"Class J Certificate": Any one of the Certificates with a "Class
J"
designation on the face thereof, substantially in the form of
Exhibit A-18
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class J Pass-Through Rate": A per annum rate equal to 5.1240%;
provided, however, that the Class J Pass-Through Rate shall not
exceed the
Weighted Average Adjusted Net Mortgage Rate for the related
Distribution Date.
"Class K Certificate": Any one of the Certificates with a "Class
K"
designation on the face thereof, substantially in the form of
Exhibit A-19
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class K Pass-Through Rate": A per annum rate equal to 5.1240%;
provided, however, that the Class K Pass-Through Rate shall not
exceed the
Weighted Average Adjusted Net Mortgage Rate for the related
Distribution Date.
"Class L Certificate": Any one of the Certificates with a "Class
L"
designation on the face thereof, substantially in the form of
Exhibit A-20
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class L Pass-Through Rate": A per annum rate equal to 5.1240%;
provided, however, that the Class L Pass-Through Rate shall not
exceed the
Weighted Average Adjusted Net Mortgage Rate for the related
Distribution Date.
"Class M Certificate": Any one of the Certificates with a "Class
M"
designation on the face thereof, substantially in the form of
Exhibit A-21
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class M Pass-Through Rate": A per annum rate equal to 5.1240%;
provided, however, that the Class M Pass-Through Rate shall not
exceed the
Weighted Average Adjusted Net Mortgage Rate for the related
Distribution Date.
"Class N Certificate": Any one of the Certificates with a "Class
N"
designation on the face thereof, substantially in the form of
Exhibit A-22
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class N Pass-Through Rate": A per annum rate equal to 5.1240%;
provided, however, that the Class N Pass-Through Rate shall not
exceed the
Weighted Average Adjusted Net Mortgage Rate for the related
Distribution Date.
"Class O Certificate": Any one of the Certificates with a "Class
O"
designation on the face thereof, substantially in the form of
Exhibit A-23
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class O Pass-Through Rate": A per annum rate equal to 5.1240%;
provided, however, that the Class O Pass-Through Rate shall not
exceed the
Weighted Average Adjusted Net Mortgage Rate for the related
Distribution Date.
"Class P Certificate": Any one of the Certificates with a "Class
P"
designation on the face thereof, substantially in the form of
Exhibit A-24
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class P Pass-Through Rate": A per annum rate equal to 5.1240%;
provided, however, that the Class P Pass-Through Rate shall not
exceed the
Weighted Average Adjusted Net Mortgage Rate for the related
Distribution Date.
"Class Principal Balance": The aggregate principal amount of
any
Class of Principal Pay Certificates outstanding as of any date of
determination.
As of the Closing Date, the Class Principal Balance of each such
Class of
Certificates shall equal the Initial Class Principal Balance
thereof. On each
Distribution Date, the Class Principal Balance of each Class of
Principal Pay
Certificates shall be permanently reduced by the amount of any
distributions of
principal made thereon on such Distribution Date pursuant to
Section 4.01(b),
and shall be further permanently reduced on such Distribution Date
as and to the
extent provided in Section 4.04.
"Class R-I Certificate": Any one of the Certificates with a
"Class
R-I" designation on the face thereof, substantially in the form of
Exhibit A-25
attached hereto, and evidencing the REMIC I Residual Interest for
purposes of
the REMIC Provisions.
"Class R-II Certificate": Any one of the Certificates with a
"Class
R-II" designation on the face thereof, substantially in the form of
Exhibit A-26
attached hereto, and evidencing the sole Class of "residual
interest" in REMIC
II for purposes of the REMIC Provisions.
"Class V Certificate": Any one of the Certificates with a "Class
V"
designation on the face thereof, substantially in the form of
Exhibit A-27
attached hereto, and evidencing undivided beneficial interests in
the portion of
the Trust Fund consisting of Excess Interest and the Excess
Interest
Distribution Account.
"Class X Certificates": Any one of the Class XC or Class XP
Certificates.
"Class X Notional Amount": The Class XC Notional Amount or the
Class
XP Notional Amount.
"Class XC Certificate": Any one of the Certificates with a
"Class
XC" designation on the face thereof, substantially in the form of
Exhibit A-7
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class XC Notional Amount": As of any date of determination, the
sum
of the then Component Notional Amounts of all of the
Components.
"Class XC Pass-Through Rate": With respect to the initial
Distribution Date, 0.0535% per annum, and for any subsequent
Distribution Date,
the weighted average of the Class XC Strip Rates for the respective
Components
for such Distribution Date (weighted on the basis of the respective
Component
Notional Amounts of such Components outstanding immediately prior
to such
Distribution Date).
"Class XC Strip Rate": With respect to any Class of Components
(other than any Class XP Component) for any Distribution Date, a
rate per annum
equal to (i) the Weighted Average Adjusted Net Mortgage Rate for
such
Distribution Date, minus (ii) the Pass-Through Rate for the
Corresponding
Certificates. In the case of any Class XP Component (i) for any
Distribution
Date occurring on or before the related Class XP Component
Crossover Date, (x)
the Weighted Average Adjusted Net Mortgage Rate for such
Distribution Date minus
(y) the sum of the Pass-Through Rate for the Corresponding
Certificates for such
Distribution Date and the Class XP Strip Rate for such Component
for such
Distribution Date, and (ii) for any Distribution Date occurring
after the
related Class XP Component Crossover Date, a rate per annum equal
to (x) the
Weighted Average Adjusted Net Mortgage Rate for such Distribution
Date, minus
(y) the Pass-Through Rate for the Corresponding Certificates
(provided that in
no event shall any Class XC Strip Rate be less than zero).
"Class XP Certificate": Any one of the Certificates with a
"Class
XP" designation on the face thereof, substantially in the form of
Exhibit A-8
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class XP Component Crossover Date": With respect to each Class
XP
Component, the related Class XP Component Crossover Date as set
forth in the
table below:
Class XP Component
Class XP Component Crossover Date
------------------
---------------------------------
XA-1-2 and XA-1A-2
April 2007 Distribution Date
XA-1-3 and XA-1A-3
October 2007 Distribution Date
XA-1-4, XA-1A-4 and XA-2-1
April 2008 Distribution Date
XA-1A-5, XA-2-2, XJ-1, XK and XL
October 2008 Distribution Date
XA-1A-6, XA-2-3, XH-1 and XJ-2
April 2009 Distribution Date
XA-1A-7, XA-2-4, XG-1 and XH-2
October 2009 Distribution Date
XA-1A-8, XA-2-5, XF-1 and XG-2
April 2010 Distribution Date
XA-1A-9, XA-2-6, XF-2
October 2010 Distribution Date
XA-1A-10,
XA-2-7, XA-3,
XA-AB, April 2011
Distribution Date
XA-4-1, XE-1 and XF-3
XA-1A-11, XA-4-2, XD-1 and XE-2
October 2011 Distribution Date
XA-1A-12, XA-4-3 and XD-2
April 2012 Distribution Date
XA-1A-13, XA-4-4, XC-1 and XD-3
October 2012 Distribution Date
XA-1A-14, XA-4-5 and XC-2
April 2013 Distribution Date
XA-1A-15, XA-4-6,
XA-M, XA-J, XB October 2013
Distribution Date
and XC-3
"Class XP Components": Each of Component XA-1-2, Component
XA-1-3,
Component XA-1-4, Component XA-1A-2, Component XA-1A-3, Component
XA-1A-4,
Component XA-1A-5, Component XA-1A-6, Component XA-1A-7, Component
XA-1A-8,
Component XA-1A-9, Component XA-1A-10, Component XA-1A-11,
Component XA-1A-12,
Component XA-1A-13, Component XA-1A-14, Component XA-1A-15,
Component XA-2-1,
Component XA-2-2, Component XA-2-3, Component XA-2-4, Component
XA-2-5,
Component XA-2-6, Component XA-2-7, Component XA-3, Component
XA-4-1, Component
XA-4-2, Component XA-4-3, Component XA-4-4, Component XA-4-5,
Component XA-4-6,
Component XA-AB, Component XA-M, Component XA-J, Component XB,
Component XC-1,
Component XC-2, Component XC-3, Component XD-1, Component XD-2,
Component XD-3,
Component XE-1, Component XE-2, Component XF-1, Component XF-2,
Component XF-3,
Component XG-1, Component XG-2, Component XH-1, Component XH-2,
Component XJ-1,
Component XJ-2, Component XK and Component XL.
"Class XP (Class G) Fixed Strip Rate": The applicable Class XP
Strip
Rate with respect to the Class D Certificates, 0.1710%.
"Class XP Notional Amount": As of any date of determination, the
sum
of the then Component Notional Amounts of the Class XP Components,
excluding the
Class XP Components for which the Class XP Component Crossover Date
has
previously passed.
"Class XP Pass-Through Rate": With respect to the initial
Distribution Date, 0.8320% per annum, and for any subsequent
Distribution Date,
the weighted average of the Class XP Strip Rates for the respective
Class XP
Components for such Distribution Date (weighted on the basis of the
respective
Component Notional Amounts of such Components outstanding
immediately prior to
such Distribution Date).
"Class XP Reference Rate": For any Distribution Date, the rate
per
annum corresponding to such Distribution Date on Schedule IV
attached hereto.
"Class XP Strip Rate": With respect to each of the Class XP
Components for any Distribution Date, a rate per annum equal to (i)
for any
Distribution Date occurring on or before the related Class XP
Component
Crossover Date, (x) with respect to Component XG, the Class XP
(Class G) Fixed
Strip Rate, and (y) with respect to each other Class XP Component,
the lesser of
(I) the Weighted Average Adjusted Net Mortgage Rate for such
Distribution Date
and (II) the Class XP Reference Rate for such Distribution Date
minus (z) the
Pass-Through Rate for the Corresponding Certificates (provided that
in no event
shall any Class XP Strip Rate be less than zero), and (ii) for any
Distribution
Date occurring after the related Class XP Component Crossover Date,
0% per
annum.
"Clearstream": Clearstream Banking, societe anonyme.
"Closing Date": October 12, 2006.
"CMSA": The Commercial Mortgage Securities Association, or any
association or organization that is a successor thereto. If neither
such
association nor any successor remains in existence, "CMSA" shall be
deemed to
refer to such other association or organization as may exist whose
principal
membership consists of servicers, trustees, issuers, initial
purchasers,
placement agents and underwriters generally involved in the
commercial mortgage
loan securitization industry that is the principal such association
or
organization in the commercial mortgage loan securitization
industry and one of
whose principal purposes is the establishment of industry standards
for
reporting transaction-specific information relating to commercial
mortgage
pass-through certificates and commercial mortgage-backed bonds and
the
commercial mortgage loans and foreclosed properties underlying or
backing them
to investors holding or owning such certificates or bonds, and any
successor to
such other association or organization. If an organization or
association
described in one of the preceding sentences of this definition does
not exist,
"CMSA" shall be deemed to refer to such other association or
organization as
shall be selected by the Master Servicer and reasonably acceptable
to the
Trustee, the Special Servicer and the Directing
Certificateholder.
"CMSA Advance Recovery Report": The monthly report substantially
in
the form of, and containing the information called for in, the
downloadable form
of the "Advance Recovery Report" available as of the Closing Date
on the CMSA
Website, or such other form for the presentation of such
information and
containing such additional information as may from time to time be
approved by
the CMSA for commercial mortgage securities transactions generally
and, insofar
as it requires the presentation of information in addition to that
called for by
the form of the "Advance Recovery Report" available as of the
Closing Date on
the CMSA Website, is reasonably acceptable to the Trustee.
"CMSA Bond Level File": The monthly report substantially in the
form
of, and containing the information called for in, the downloadable
form of the
"Bond Level File" available as of the Closing Date on the CMSA
Website, or such
other form for the presentation of such information and containing
such
additional information as may from time to time be recommended by
the CMSA for
commercial mortgage securities transactions generally and is
reasonably
acceptable to the Trustee.
"CMSA Collateral Summary File": The report substantially in the
form
of, and containing the information called for in, the downloadable
form of the
"Collateral Summary File" available as of the Closing Date on the
CMSA Website,
or such other form for the presentation of such information and
containing such
additional information as may from time to time be recommended by
the CMSA for
commercial mortgage securities transactions generally and is
reasonably
acceptable to the Trustee.
"CMSA Comparative Financial Status Report": A report
substantially
in the form of, and containing the information called for in, the
downloadable
form of the "Comparative Financial Status Report" available as of
the Closing
Date on the CMSA Website, or such other form for the presentation
of such
information as may from time to time be recommended by the CMSA for
commercial
mortgage securities transactions generally and is reasonably
acceptable to the
Master Servicer and the Special Servicer.
"CMSA Delinquent Loan Status Report": A report substantially in
the
form of, and containing the information called for in, the
downloadable form of
the "Delinquent Loan Status Report" available as of the Closing
Date on the CMSA
Website, or such other form for the presentation of such
information and
containing such additional information as may from time to time be
recommended
by the CMSA for commercial mortgage securities transactions
generally and is
reasonably acceptable to the Master Servicer and the Special
Servicer.
"CMSA Financial File": A report substantially in the form of,
and
containing the information called for in, the downloadable form of
the
"Financial File" available as of the Closing Date on the CMSA
Website, or such
other form for the presentation of such information and containing
such
additional information as may from time to time be recommended by
the CMSA for
commercial mortgage securities transactions generally and is
reasonably
acceptable to the Master Servicer.
"CMSA Historical Loan Modification and Corrected Mortgage Loan
Report": A report substantially in the form of, and containing the
information
called for in, the downloadable form of the "Historical Loan
Modification and
Corrected Mortgage Loan Report" available as of the Closing Date on
the CMSA
Website, or such other form for the presentation of such
information and
containing such additional information as may from time to time be
recommended
by the CMSA for commercial mortgage securities transactions
generally and is
reasonably acceptable to the Master Servicer and the Special
Servicer.
"CMSA Investor Reporting Package": Collectively refers to:
(a) the following seven electronic files: (i) CMSA Bond Level
File,
(ii) CMSA
Collateral Summary File, (iii) CMSA Property File, (iv) CMSA
Loan
Periodic Update File, (v) CMSA Loan Setup File, (vi) CMSA
Financial
File, and
(vii) CMSA Special Servicer Loan File;
(b) the following eight supplemental reports: (i) CMSA
Comparative
Financial
Status Report, (ii) CMSA Delinquent Loan Status Report, (iii)
CMSA
Historical Loan Modification and Corrected Mortgage Loan Report,
(iv)
CMSA
Operating Statement Analysis Report, (v) CMSA NOI Adjustment
Worksheet,
(vi) CMSA REO Status Report, (vii) CMSA Servicer Watch List and
(viii)
CMSA Loan Level Reserve - LOC Report;
(c) the CMSA Advance Recovery Report; and
(d) such other reports as CMSA may designate as part of the
CMSA
Investor
Reporting Package that are reasonably acceptable to the Master
Servicer,
Special Servicer or Trustee, as applicable.
"CMSA Loan Level Reserve-LOC Report": The monthly report
substantially in the form of, and containing the information called
for in, the
downloadable form of the "Loan Level Reserve LOC Report" available
as of the
Closing Date on the CMSA Website, or such other form for the
presentation of
such information and containing such additional information as may
from time to
time be recommended by the CMSA for commercial mortgage securities
transactions
generally and is reasonably acceptable to the Master Servicer.
"CMSA Loan Periodic Update File": The monthly report
substantially
in the form of, and containing the information called for in, the
downloadable
form of the "Loan Periodic Update File" available as of the Closing
Date on the
CMSA Website, or such other form for the presentation of such
information and
containing such additional information as may from time to time be
recommended
by the CMSA for commercial mortgage securities transactions
generally and is
reasonably acceptable to the Master Servicer, the Special Servicer
and the
Trustee.
"CMSA Loan Setup File": The report substantially in the form of,
and
containing the information called for in, the downloadable form of
the "Loan
Setup File" available as of the Closing Date on the CMSA Website,
or such other
form for the presentation of such information and containing such
additional
information as may from time to time be recommended by the CMSA for
commercial
mortgage securities transactions generally and is reasonably
acceptable to the
Master Servicer, the Special Servicer and the Trustee.
"CMSA NOI Adjustment Worksheet": A report substantially in the
form
of, and containing the information called for in, the downloadable
form of the
"NOI Adjustment Worksheet" available as of the Closing Date on the
CMSA Website,
or such other form for the presentation of such information and
containing such
additional information as may from time to time be recommended by
the CMSA for
commercial mortgage securities transactions generally and is
acceptable to the
Master Servicer or the Special Servicer, as applicable, and in any
event, shall
present the computations made in accordance with the methodology
described in
such form to "normalize" the full year net operating income and
debt service
coverage numbers used in the other reports required by this
Agreement.
"CMSA Operating Statement Analysis Report": A report
substantially
in the form of, and containing the information called for in, the
downloadable
form of the "Operating Statement Analysis Report" available as of
the Closing
Date on the CMSA Website or in such other form for the presentation
of such
information and containing such additional information as may from
time to time
be recommended by the CMSA for commercial mortgage-backed
securities
transactions generally and is reasonably acceptable to the Master
Servicer.
"CMSA Property File": A report substantially in the form of,
and
containing the information called for in, the downloadable form of
the "Property
File" available as of the Closing Date on the CMSA Website, or such
other form
for the presentation of such information and containing such
additional
information as may from time to time be recommended by the CMSA for
commercial
mortgage securities transactions generally and is reasonably
acceptable to the
Master Servicer and the Special Servicer.
"CMSA Reconciliation of Funds Report": The report substantially
in
the form of, and containing the information called for in, the
downloadable form
of the "Reconciliation of Funds Report" available as of the Closing
Date on the
CMSA Website, or such other form for the presentation of such
information and
containing such additional information as may from time to time be
recommended
by the CMSA for commercial mortgage securities transactions
generally and is
reasonably acceptable to the Trustee.
"CMSA REO Status Report": A report substantially in the form of,
and
containing the information called for in, the downloadable form of
the "REO
Status Report" available as of the Closing Date on the CMSA
Website, or in such
other form for the presentation of such information and containing
such
additional information as may from time to time be recommended by
the CMSA for
commercial mortgage securities transactions generally and is
reasonably
acceptable to the Special Servicer.
"CMSA Servicer Watch List": For any Determination Date, a
report
substantially in the form of, and containing the information called
for in, the
downloadable form of the "Servicer Watch List" available as of the
Closing Date
on the CMSA Website, or in such other final form for the
presentation of such
information and containing such additional information as may from
time to time
be promulgated as recommended by the CMSA for commercial mortgage
securities
transactions generally and, insofar as it requires the presentation
of
information in addition to that called for by the form of the
"Servicer Watch
List" available as of the Closing Date on the CMSA Website, is
reasonably
acceptable to the Master Servicer or the Special Servicer, as
applicable.
"CMSA Special Servicer Loan File": The monthly report
substantially
in the form of, and containing the information called for in, the
downloadable
form of the "Special Servicer Loan File" available as of the
Closing Date on the
CMSA Website, or such other form for the presentation of such
information and
containing such additional information as may from time to time be
recommended
by the CMSA for commercial mortgage securities transactions
generally and is
reasonably acceptable to the Special Servicer.
"CMSA Website": The CMSA's Website located at "www.cmbs.org" or
such
other primary website as the CMSA may establish for dissemination
of its report
forms.
"Code": The Internal Revenue Code of 1986, as amended.
"Collection Period": With respect to any Distribution Date, the
period commencing immediately following the Determination Date in
the calendar
month preceding the month in which such Distribution Date occurs
(or, in the
case of the initial Distribution Date, commencing immediately
following the
Cut-off Date) and ending on and including the Determination Date in
the calendar
month in which such Distribution Date occurs.
"Commission": The Securities and Exchange Commission.
"Compensating Interest Payment": With respect to any
Distribution
Date, any payment made by the Master Servicer pursuant to Section
3.19(e) to
cover any Balloon Payment Interest Shortfall and Prepayment
Interest Shortfalls
incurred during the related Collection Period.
"Component": Each of Component XA-1-1, Component XA-1-2,
Component
XA-1-3, Component XA-1-4, Component XA-1A-1, Component XA-1A-2,
Component
XA-1A-3, Component XA-1A-4, Component XA-1A-5, Component XA-1A-6,
Component
XA-1A-7, Component XA-1A-8, Component XA-1A-9, Component XA-1A-10,
Component
XA-1A-11, Component XA-1A-12, Component XA-1A-13, Component
XA-1A-14, Component
XA-1A-15, Component XA-2-1, Component XA-2-2, Component XA-2-3,
Component
XA-2-4, Component XA-2-5, Component XA-2-6, Component XA-2-7,
Component XA-3,
Component XA-4-1, Component XA-4-2, Component XA-4-3, Component
XA-4-4,
Component XA-4-5, Component XA-4-6, Component XA-AB, Component
XA-M, Component
XA-J, Component XB, Component XC-1, Component XC-2, Component XC-3,
Component
XD-1, Component XD-2, Component XD-3, Component XE-1, Component
XE-2, Component
XF-1, Component XF-2, Component XF-3, Component XG-1, Component
XG-2, Component
XH-1, Component XH-2, Component XJ-1, Component XJ-2, Component XK,
Component
XL, Component XM, Component XN, Component XO and Component XP.
"Component Notional Amount": With respect to each Component and
any
date of determination, an amount equal to the then REMIC I
Principal Balance of
its Corresponding REMIC I Regular Interest.
"Component XA-1-1": One of the 60 components of the Class XC
Certificates having a Component Notional Amount equal to the then
current REMIC
I Principal Balance of REMIC I Regular Interest LA-1-1 as of any
date of
determination.
"Component XA-1-2": One of the 60 components of the Class XC
Certificates and one of the 54 components of the Class XP
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LA-1-2 as of any date of
determination.
"Component XA-1-3": One of the 60 components of the Class XC
Certificates and one of the 54 components of the Class XP
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LA-1-3 as of any date of
determination.
"Component XA-1-4": One of the 60 components of the Class XC
Certificates and one of the 54 components of the Class XP
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LA-1-4 as of any date of
determination.
"Component XA-1A-1": One of the 60 components of the Class XC
Certificates having a Component Notional Amount equal to the then
current REMIC
I Principal Balance of REMIC I Regular Interest LA-1A-1 as of any
date of
determination.
"Component XA-1A-2": One of the 60 components of the Class XC
Certificates and one of the 54 components of the Class XP
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LA-1A-2 as of any date of
determination.
"Component XA-1A-3": One of the 60 components of the Class XC
Certificates and one of the 54 components of the Class XP
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LA-1A-3 as of any date of
determination.
"Component XA-1A-4": One of the 60 components of the Class XC
Certificates and one of the 54 components of the Class XP
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LA-1A-4 as of any date of
determination.
"Component XA-1A-5": One of the 60 components of the Class XC
Certificates and one of the 54 components of the Class XP
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LA-1A-5 as of any date of
determination.
"Component XA-1A-6": One of the 60 components of the Class XC
Certificates and one of the 54 components of the Class XP
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LA-1A-6 as of any date of
determination.
"Component XA-1A-7": One of the 60 components of the Class XC
Certificates and one of the 54 components of the Class XP
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LA-1A-7 as of any date of
determination.
"Component XA-1A-8": One of the 60 components of the Class XC
Certificates and one of the 54 components of the Class XP
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LA-1A-8 as of any date of
determination.
"Component XA-1A-9": One of the 60 components of the Class XC
Certificates and one of the 54 components of the Class XP
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LA-1A-9 as of any date of
determination.
"Component XA-1A-10": One of the 60 components of the Class XC
Certificates and one of the 54 components of the Class XP
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LA-1A-10 as of any date of
determination.
"Component XA-1A-11": One of the 60 components of the Class XC
Certificates and one of the 54 components of the Class XP
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LA-1A-11 as of any date of
determination.
"Component XA-1A-12": One of the 60 components of the Class XC
Certificates and one of the 54 components of the Class XP
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LA-1A-12 as of any date of
determination.
"Component XA-1A-13": One of the 60 components of the Class XC
Certificates and one of the 54 components of the Class XP
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LA-1A-13 as of any date of
determination.
"Component XA-1A-14": One of the 60 components of the Class XC
Certificates and one of the 54 components of the Class XP
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LA-1A-14 as of any date of
determination.
"Component XA-1A-15": One of the 60 components of the Class XC
Certificates and one of the 54 components of the Class XP
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LA-1A-15 as of any date of
determination.
"Component XA-2-1": One of the 60 components of the Class XC
Certificates and one of the 54 components of the Class XP
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LA-2-1 as of any date of
determination.
"Component XA-2-2": One of the 60 components of the Class XC
Certificates and one of the 54 components of the Class XP
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LA-2-2 as of any date of
determination.
"Component XA-2-3": One of the 60 components of the Class XC
Certificates and one of the 54 components of the Class XP
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LA-2-3 as of any date of
determination.
"Component XA-2-4": One of the 60 components of the Class XC
Certificates and one of the 54 components of the Class XP
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LA-2-4 as of any date of
determination.
"Component XA-2-5": One of the 60 components of the Class XC
Certificates and one of the 54 components of the Class XP
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LA-2-5 as of any date of
determination.
"Component XA-2-6": One of the 60 components of the Class XC
Certificates and one of the 54 components of the Class XP
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LA-2-6 as of any date of
determination.
"Component XA-2-7": One of the 60 components of the Class XC
Certificates and one of the 54 components of the Class XP
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LA-2-7 as of any date of
determination.
"Component XA-3": One of the 60 components of the Class XC
Certificates and one of the 54 components of the Class XP
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LA-3 as of any date of determination.
"Component XA-4-1": One of the 60 components of the Class XC
Certificates and one of the 54 components of the Class XP
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LA-4-1 as of any date of
determination.
"Component XA-4-2": One of the 60 components of the Class XC
Certificates and one of the 54 components of the Class XP
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LA-4-2 as of any date of
determination.
"Component XA-4-3": One of the 60 components of the Class XC
Certificates and one of the 54 components of the Class XP
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LA-4-3 as of any date of
determination.
"Component XA-4-4": One of the 60 components of the Class XC
Certificates and one of the 54 components of the Class XP
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LA-4-4 as of any date of
determination.
"Component XA-4-5": One of the 60 components of the Class XC
Certificates and one of the 54 components of the Class XP
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LA-4-5 as of any date of
determination.
"Component XA-4-6": One of the 60 components of the Class XC
Certificates and one of the 54 components of the Class XP
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LA-4-6 as of any date of
determination.
"Component XA-AB": One of the 60 components of the Class XC
Certificates and one of the 54 components of the Class XP
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LA-AB as of any date of determination.
"Component XA-J": One of the 60 components of the Class XC
Certificates and one of the 54 components of the Class XP
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LA-J as of any date of determination.
"Component XA-M": One of the 60 components of the Class XC
Certificates and one of the 54 components of the Class XP
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LA-M as of any date of determination.
"Component XB": One of the 60 components of the Class XC
Certificates and one of the 54 components of the Class XP
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LB as of any date of determination.
"Component XC-1": One of the 60 components of the Class XC
Certificates and one of the 54 components of the Class XP
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LC-1 as of any date of determination.
"Component XC-2": One of the 60 components of the Class XC
Certificates and one of the 54 components of the Class XP
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LC-2 as of any date of determination.
"Component XC-3": One of the 60 components of the Class XC
Certificates and one of the 54 components of the Class XP
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LC-3 as of any date of determination.
"Component XD-1": One of the 60 components of the Class XC
Certificates and one of the 54 components of the Class XP
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LD-1 as of any date of determination.
"Component XD-2": One of the 60 components of the Class XC
Certificates and one of the 54 components of the Class XP
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LD-2 as of any date of determination.
"Component XD-3": One of the 60 components of the Class XC
Certificates and one of the 54 components of the Class XP
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LD-3 as of any date of determination.
"Component XE-1": One of the 60 components of the Class XC
Certificates and one of the 54 components of the Class XP
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LE-1 as of any date of determination.
"Component XE-2": One of the 60 components of the Class XC
Certificates and one of the 54 components of the Class XP
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LE-2 as of any date of determination.
"Component XF-1": One of the 60 components of the Class XC
Certificates and one of the 54 components of the Class XP
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LF-1 as of any date of determination.
"Component XF-2": One of the 60 components of the Class XC
Certificates and one of the 54 components of the Class XP
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LF-2 as of any date of determination.
"Component XF-3": One of the 60 components of the Class XC
Certificates and one of the 54 components of the Class XP
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LF-3 as of any date of determination.
"Component XG-1": One of the 60 components of the Class XC
Certificates and one of the 54 components of the Class XP
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LG-1 as of any date of determination.
"Component XG-2": One of the 60 components of the Class XC
Certificates and one of the 54 components of the Class XP
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LG-2 as of any date of determination.
"Component XH-1": One of the 60 components of the Class XC
Certificates and one of the 54 components of the Class XP
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LH-1 as of any date of determination.
"Component XH-2": One of the 60 components of the Class XC
Certificates and one of the 54 components of the Class XP
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LH-2 as of any date of determination.
"Component XJ-1": One of the 60 components of the Class XC
Certificates and one of the 54 components of the Class XP
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LJ-1 as of any date of determination.
"Component XJ-2": One of the 60 components of the Class XC
Certificates and one of the 54 components of the Class XP
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LJ-2 as of any date of determination.
"Component XK": One of the 60 components of the Class XC
Certificates and one of the 54 components of the Class XP
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LK as of any date of determination.
"Component XL": One of the 60 components of the Class XC
Certificates and one of the 54 components of the Class XP
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LL as of any date of determination.
"Component XM": One of the 60 components of the Class XC
Certificates and having a Component Notional Amount equal to the
then current
REMIC I Principal Balance of REMIC I Regular Interest LP as of any
date of
determination.
"Component XN": One of the 60 components of the Class XC
Certificates having a Component Notional Amount equal to the then
current REMIC
I Principal Balance of REMIC I Regular Interest LN as of any date
of
determination.
"Component XO": One of the 60 components of the Class XC
Certificates having a Component Notional Amount equal to the then
current REMIC
I Principal Balance of REMIC I Regular Interest LO as of any date
of
determination.
"Component XP": One of the 60 components of the Class XC
Certificates and having a Component Notional Amount equal to the
then current
REMIC I Principal Balance of REMIC I Regular Interest LP as of any
date of
determination.
"Condemnation Proceeds": All cash amounts received by the
Master
Servicer or the Special Servicer in connection with the taking of
all or a part
of a Mortgaged Property by exercise of the power of eminent domain
or
condemnation, exclusive of any portion thereof required to be
released to the
related Mortgagor or any other third-party in accordance with
applicable law
and/or the terms and conditions of the related loan documents or
any other
applicable document.
"Confidential Information": As defined in Section 3.24.
"Control Appraisal Period": With respect to (i) Eastridge Mall
A/B
Loan, the Eastridge Mall Eastridge Mall A/B Loan Control Appraisal
Period, (ii)
Camp Group Portfolio A/B Loan, the Camp Group Portfolio A/B Loan
Control
Appraisal Period and (ii) the Seville Plaza A/B Loan, the Seville
Plaza A/B Loan
Control Appraisal Period.
"Controlling Class": As of any date of determination, the
outstanding Class of Sequential Pay Certificates with the lowest
Payment
Priority (the Class A Senior Certificates being treated as a single
Class for
this purpose) that has a then outstanding Class Principal Balance
at least equal
to 25% of the Initial Class Principal Balance thereof (or, if no
Class of
Sequential Pay Certificates has a Class Principal Balance at least
equal to 25%
of the Initial Class Principal Balance thereof, then the
"Controlling Class"
shall be the outstanding Class of Sequential Pay Certificates with
the then
largest outstanding Class Principal Balance).
"Controlling Class Certificateholders": Each Holder (or
Certificate
Owner, if applicable) of a Certificate of the Controlling Class as
certified to
the Trustee from time to time by such Holder (or Certificate
Owner).
"Controlling Class Optionholder": The Purchase Option held by
the
Majority Certificateholder of the Controlling Class pursuant to
Section 3.18(c).
"Controlling Holder": With respect to (i) the Eastridge Mall
A/B
Loan, the Eastridge Mall A/B Loan Controlling Holder, (ii) the Camp
Group
Portfolio A/B Loan, the Camp Group Portfolio A/B Loan Controlling
Holder and
(iii) the Seville Plaza A/B Loan, the Seville Plaza A/B Loan
Controlling Holder.
Each such initial Controlling Holder shall be set forth on Schedule
VII hereto.
"Corporate Trust Office": The principal corporate trust office
of
the Trustee, for purposes of Certificate transfer services, at the
date of the
execution of this Agreement is located at (i) with respect to
maintenance of the
Certificate Register and the transfer and exchange of Certificates,
the office
of the Trustee located at 135 South LaSalle Street, Suite 1625,
Chicago,
Illinois 60603, Attention: Global Securities and Trust Services
Group, BACM
2006-5, and with respect to any successor Trustee, the principal
office thereof
as designated in writing to the Depositor.
"Corrected Loan": Any Loan that had been a Specially Serviced
Loan
but as to which all Servicing Transfer Events have ceased to exist
other than in
connection with a sale pursuant to Section 3.18.
"Corresponding Certificate": As defined in the Preliminary
Statement
with respect to any Corresponding Component or any Corresponding
REMIC I Regular
Interest.
"Corresponding Component": As defined in the Preliminary
Statement
with respect to any Corresponding Certificate or any Corresponding
REMIC I
Regular Interest.
"Corresponding REMIC I Regular Interest": As defined in the
Preliminary Statement with respect to any Corresponding Certificate
or any
Corresponding Component.
"Covered Risks": As defined in Section 3.07(a).
"CPR": As defined in the Base Prospectus.
"Cross-Collateralized Mortgage Loan": Any Loan that is, by its
terms, cross-defaulted and cross-collateralized with any other
Loan.
"Cross-Collateralized Set": Any set of Loans that is
cross-defaulted
and cross-collateralized with each other.
"Current Principal Distribution Amount": With respect to any
Distribution Date, an amount (calculated in accordance with Section
1.03) equal
to the aggregate of, without duplication:
(a) the principal portions of all Monthly Payments (other than
Balloon
Payments) and any Assumed Monthly Payments due or deemed due,
as
the case
may be, made by or on behalf of the related borrower or
advanced
in respect
of the Mortgage Loans in the Mortgage Pool or in such Loan
Group, as
applicable, and any REO Loans for their respective Due Dates
occurring
during the related Collection Period or any prior Collection
Period (if
not previously distributed);
(b) all Principal Prepayments received on the Mortgage Loans in
the
Mortgage
Pool or in such Loan Group, as applicable, during the related
Collection
Period;
(c) with respect to any Balloon Loan that is included in the
Mortgage
Pool or in such Loan Group, as applicable, as to which the
related
Stated Maturity Date occurred during or prior to the related
Collection
Period, any payment of principal (exclusive of any Principal
Prepayment
and any amount described in subclause (d) of this definition)
that was
made by or on behalf of the related Mortgagor during the
related
Collection
Period, net of any portion of such payment that represents a
recovery
of the principal portion of any Monthly Payment (other than a
Balloon
Payment) due, or the principal portion of any Assumed Monthly
Payment
deemed due, in respect of such Balloon Loan on a Due Date
during
or prior
to the related Collection Period and not previously recovered;
(d) all Liquidation Proceeds (net of Liquidation Expenses),
Insurance
Proceeds (net of related expenses) and Condemnation Proceeds
(net of
related expenses) received on or in respect of the Mortgage
Loans
during the
related Collection Period (including any amount related to the
Loss of
Value Payments to the extent that such amount was transferred
into
the
Certificate Account pursuant to Section 3.05(g) during the
related
Collection
Period) that were identified and applied by the Master Servicer
as
recoveries of principal thereof, in each case net of any portion
of
such
amounts that represents a recovery of the principal portion of
any
Monthly
Payment (other than a Balloon Payment) due, or of the principal
portion of
any Assumed Monthly Payment deemed due, in respect of any such
Mortgage
Loan on a Due Date during or prior to the related Collection
Period and
not previously recovered; and
(e) all Liquidation Proceeds (net of Liquidation Expenses),
Insurance
Proceeds (net of related expenses), Condemnation Proceeds(net
of
related
expenses) and REO Revenues (net of related expenses) received
on
or in
respect of any REO Properties during the related Collection
Period
that were
identified and applied by the Master Servicer as recoveries of
principal
of the related REO Loans, in each case net of any portion of
such
amounts that represents a recovery of the principal portion of
any
Monthly
Payment (other than a Balloon Payment) due, or of the principal
portion of
any Assumed Monthly Payment deemed due, in respect of any such
REO Loan
or the predecessor Mortgage Loan on a Due Date during or prior
to
the
related Collection Period and not previously recovered.
"Custodian": A Person who is at any time appointed by the
Trustee
pursuant to Section 8.11 as a document custodian for the Mortgage
Files, which
Person shall not be the Depositor, a Mortgage Loan Seller or an
Affiliate of
either of them.
"Cut-off Date": October 1, 2006, or with respect to Loan No.
20061737 (in the Mortgage Loan Schedule attached hereto as Schedule
I), October
5, 2006.
"Cut-off Date Balance": With respect to any Mortgage Loan or Note
B,
the outstanding principal balance of such Loan as of the Cut-off
Date, net of
all unpaid payments of principal due in respect thereof on or
before such date.
"Debt Service Coverage Ratio": With respect to any Loan, as of
any
date of determination, and calculated without regard to any
cross-collateralization feature of such Loan, the ratio of (x) the
Net Cash Flow
(before payment of any debt service on such Loan) generated by the
related
Mortgaged Property or Mortgaged Properties during the most recently
ended period
of not more than 12 months or less than three months for which
financial
statements (whether or not audited) have been received by or on
behalf of the
related Mortgage Loan Seller (prior to the Closing Date) or the
Master Servicer
or the Special Servicer (following the Closing Date), to (y) the
product of the
amount of the Monthly Payment in effect for such Loan as of such
date of
determination, multiplied by the number of months represented in
the financial
statements. The Master Servicer may, in accordance with CMSA
reporting
standards, report Net Cash Flow with respect to each Mortgaged
Property where
one or more Loans are secured by multiple Mortgaged Properties;
provided,
however, that for purposes of determining Debt Service Coverage
Ratio
compliance, calculations shall be made at the Loan level.
"Default Charges": Any Default Interest and/or late payment
charges
that are paid or payable, as the context may require, in respect of
any Loan or
REO Loan.
"Default Interest": With respect to any Loan (or successor REO
Loan), any amounts collected thereon, other than late payment
charges or
Prepayment Premiums, that represent interest in excess of interest
accrued on
the principal balance of such Loan (or REO Loan) at the related
Mortgage Rate,
such excess interest arising out of a default under such Loan.
"Defaulted Loan": A Loan (i) that is delinquent 60 days or more
in
respect to a Monthly Payment (not including the Balloon Payment) or
(ii) is more
than 60 days delinquent in respect of its Balloon Payment unless
(w) the related
Borrower is actively seeking a refinancing commitment, (x) the
related Borrower
continues to make payments in the amount of its Assumed Monthly
Payment, (y)
subject to Section 3.21(f), the Directing Certificateholder
consents, and (z)
the related Mortgagor has delivered to the Master Servicer, on or
before the
60th day after the Due Date of such Balloon Payment, a refinancing
commitment
reasonably acceptable to the Master Servicer, for such longer
period, not to
exceed 120 days beyond the Due Date of such Balloon Payment, during
which the
refinancing would occur (provided that if such refinancing does not
occur during
such time specified in the commitment, the related Loan will
immediately become
a Defaulted Loan), in either case such delinquency to be determined
without
giving effect to any grace period permitted by the related Mortgage
or Mortgage
Note and without regard to any acceleration of payments under the
related
Mortgage and Mortgage Note, or (iii) as to which the Master
Servicer or Special
Servicer has, by written notice to the related Mortgagor,
accelerated the
maturity of the indebtedness evidenced by the related Mortgage
Note; provided,
with respect to the Puerto Rico Self Storage Portfolio Mortgage
Loan and after
the enactment of Puerto Rico tax legislation that would trigger a
Puerto Rico
Self Storage Portfolio Gross-Up Payment, if with respect to any Due
Date on such
Mortgage Loan, the Mortgagor fails to make any Puerto Rico Self
Storage
Portfolio Gross-Up Payment that is required to be made under the
loan agreement
for such Mortgage Loan, but the related Mortgage Loan Seller elects
to remit to
the Trust such Puerto Rico Self Storage Portfolio Gross-Up Payment
pursuant to
Section 3.30(a) within 60 days after such Puerto Rico Self Storage
Portfolio
Gross-Up Payment is due, no Servicing Transfer Event shall occur
solely as a
result of the Mortgagor failing to make such Puerto Rico Self
Storage Portfolio
Gross-Up Payment on such Due Date, so long as the related Mortgage
Loan Seller
remits such Puerto Rico Self Storage Portfolio Gross-Up Payment to
the Trust
within 60 days after such Puerto Rico Self Storage Portfolio
Gross-Up Payment is
due.
"Defaulting Party": As defined in Section 7.01(b).
"Defective Mortgage Loan": Any Mortgage Loan as to which there
exists a Material Breach or a Material Document Defect that was not
cured in all
material respects.
"Definitive Certificate": As defined in Section 5.03(a).
"Deleted Mortgage Loan": A Defective Mortgage Loan that is
repurchased from the Trust or replaced with one or more Replacement
Mortgage
Loans, in either case as contemplated by Section 2.03.
"Denomination": As defined in Section 5.01(a).
"Depositor": Banc of America Commercial Mortgage Inc., or its
successor in interest.
"Depository": The Depository Trust Company, or any successor
Depository hereafter named. The nominee of the initial Depository
for purposes
of registering those Certificates that are to be Book-Entry
Certificates, is
Cede & Co. The Depository shall at all times be a "clearing
corporation" as
defined in Section 8-102(3) of the Uniform Commercial Code of the
State of New
York and a "clearing agency" registered pursuant to the provisions
of Section
17A of the Exchange Act.
"Depository Participant": A broker, dealer, bank or other
financial
institution or other Person for whom from time to time the
Depository effects
book-entry transfers and pledges of securities deposited with the
Depository.
"Depository Rules": As defined in Section 5.02(b).
"Determination Date": With respect to any Distribution Date,
the
earlier of (i) the sixth day of the month in which such
Distribution Date
occurs, or if such sixth day is not a Business Day, the immediately
preceding
Business Day, and (ii) fourth Business Day before such Distribution
Date.
"Determination Information": As defined in Section 3.18(b).
"Directing Certificateholder": The Controlling Class
Certificateholder (or its designee) selected by the Majority
Certificateholder
of the Controlling Class, as certified by the Trustee from time to
time;
provided, however, that (i) absent such selection, or (ii) until a
Directing
Certificateholder is so selected, or (iii) upon receipt of a notice
from a
majority of the Controlling Class, by Certificate Principal
Balance, that a
Directing Certificateholder is no longer designated, the
Controlling Class
Certificateholder that owns the largest aggregate Certificate
Principal Balance
of the Controlling Class will be the Directing Certificateholder.
The initial
Directing Certificateholder is Anthracite Capital, Inc.
"Directly Operate": With respect to any REO Property, the
furnishing
or rendering of services to the tenants thereof, the management or
operation of
such REO Property, the holding of such REO Property primarily for
sale to
customers (other than the sale of an REO Property pursuant to
Section 3.18, the
performance of any construction work thereon or any use of such REO
Property in
a trade or business conducted by REMIC I other than through an
Independent
Contractor; provided, however, that the Special Servicer (or any
Sub-Servicer on
behalf of the Special Servicer) shall not be considered to Directly
Operate an
REO Property solely because the Special Servicer (or any
Sub-Servicer on behalf
of the Special Servicer) establishes rental terms, chooses tenants,
enters into
or renews leases, deals with taxes and insurance, or makes
decisions as to, or
funds, repairs or capital expenditures with respect to such REO
Property
(including, without limitation, construction activity to effect
repairs or in
conjunction with leasing activity).
"Discount Rate" As defined in Section 4.01(c).
"Disqualified Non-U.S. Persons": With respect to a Class R-I or
Class R-II Certificate, any Non-U.S. Person or agent thereof other
than (i) a
Non-U.S. Person that holds the Class R-I or Class R-II Certificate
in connection
with the conduct of a trade or business within the United States
and has
furnished the transferor and the Certificate Registrar with an
effective IRS
Form W-8ECI (or successor form) or (ii) a Non-U.S. Person that has
delivered to
both the transferor and the Certificate Registrar an opinion of a
nationally
recognized tax counsel to the effect that the transfer of the Class
R-I or Class
R-II Certificate to it is in accordance with the requirements of
the Code and
the regulations promulgated thereunder and that such transfer of
the Class R-I
or Class R-II Certificate will not be disregarded for federal
income tax
purposes.
"Disqualified Organization": Any of the following: (i) the
United
States or a possession thereof, any State or any political
subdivision thereof,
or any agency or instrumentality of any of the foregoing (other
than an
instrumentality that is a corporation if all of its activities are
subject to
tax and, except for Freddie Mac, a majority of its board of
directors is not
selected by any such governmental unit), (ii) a foreign
government,
international organization, or any agency or instrumentality of
either of the
foregoing, (iii) any organization (except certain farmers'
cooperatives
described in Section 521 of the Code) that is exempt from the tax
imposed by
Chapter 1 of the Code (unless such organization is subject to the
tax imposed by
Section 511 of the Code on unrelated business taxable income), (iv)
rural
electric and telephone cooperatives described in Section 1381 of
the Code or (v)
any other Person so designated by the REMIC Administrator based
upon an Opinion
of Counsel (provided to the Trustee by such Person at its expense)
that the
holding of an Ownership Interest in a Residual Certificate by such
Person may
cause the Trust or any Person having an Ownership Interest in any
Class of
Certificates, other than such Person, to incur a liability for any
federal tax
imposed under the Code that would not otherwise be imposed but for
the Transfer
of an Ownership Interest in a Residual Certificate to such Person.
The terms
"United States", "State" and "international organization" shall
have the
meanings set forth in Section 7701 of the Code or successor
provisions.
"Distributable Certificate Interest": For any Distribution Date
with
respect to any Class of REMIC II Regular Certificates, the Accrued
Certificate
Interest in respect of such Class of Certificates for such
Distribution Date,
reduced (to not less than zero) by that portion, if any, of the Net
Aggregate
Prepayment Interest Shortfall for such Distribution Date allocated
to such Class
of Certificates. The Net Aggregate Prepayment Interest Shortfall,
if any, for
each Distribution Date shall be allocated, pro rata, to each Class
of REMIC II
Regular Certificates based on Accrued Certificate Interest for each
such Class
of Certificates for such Distribution Date.
"Distribution Account": The segregated account or accounts
created
and maintained by the Trustee pursuant to Section 3.04(b) in trust
for the
Certificateholders, which shall be entitled "LaSalle Bank National
Association,
as Trustee, in trust for the registered holders of Banc of America
Commercial
Mortgage Inc., Commercial Mortgage Pass-Through Certificates,
Series 2006-5,
Distribution Account".
"Distribution Date": The tenth day of any month, or if such
tenth
day is not a Business Day, the Business Day immediately following,
commencing in
November 2006.
"Distribution Date Statement": As defined in Section 4.02(a).
"Document Defect": With respect to any Mortgage Loan, any
document
required to be part of the related Mortgage File that has not been
properly
executed, is missing, contains information that does not conform in
any material
respect with the corresponding information set forth in the
Mortgage Loan
Schedule (and the terms of such document have not been modified by
written
instrument contained in the related Mortgage File), or does not
appear to be
regular on its face.
"Domestic Global Certificate": Any of the single, permanent
global
certificates that represents the Certificates sold in reliance on
Rule 144A.
"DTC": As defined in Section 5.03(d).
"Due Date": With respect to (i) any Loan on or prior to its
Stated
Maturity Date, the day of the month set forth in the related
Mortgage Note on
which each Monthly Payment on such Loan is scheduled to be first
due; (ii) any
Loan after its Stated Maturity Date, the day of the month set forth
in the
related Mortgage Note on which each Monthly Payment on such Loan
had been
scheduled to be first due; and (iii) any REO Loan, the day of the
month set
forth in the related Mortgage Note on which each Monthly Payment on
the related
Loan had been scheduled to be first due.
"Eastridge Mall A/B Loan": The Eastridge Mall Note A Mortgage
Loan
together with the Eastridge Mall Note B. References herein to the
Eastridge Mall
A/B Loan shall be construed to refer to the aggregate indebtedness
under the
Eastridge Mall Note A and the Eastridge Mall Note B.
"Eastridge Mall Control Appraisal Period": The meaning assigned
to
"Control Appraisal Period" in the Eastridge Mall Intercreditor
Agreement.
"Eastridge Mall Controlling Holder": The meaning assigned to
"Controlling Holder" in the Eastridge Mall Intercreditor Agreement.
The initial
Eastridge Mall Controlling Holder shall be set forth on Schedule
VII hereto.
"Eastridge Mall Intercreditor Agreement": The Agreement Among
Note
Holders dated as of October 1, 2006 by and between the Eastridge
Mall Note A
Holder and the Eastridge Mall Note B Holder relating to the
relative rights of
such holders, as the same may be further amended from time to time
in accordance
with the terms thereof.
"Eastridge Mall Mortgaged Property": The property that secures
the
Eastridge Mall A/B Loan.
"Eastridge Mall Note A": With respect to the Eastridge Mall Note
A
Mortgage Loan, the related Mortgage Note that is included in the
Trust Fund.
"Eastridge Mall Note A Holder": The holder of the Eastridge
Mall
Note B, initially Bank of America, National Association.
"Eastridge Mall Note A Mortgage Loan": The Mortgage Loan
identified
as Loan No. 3402523 in the Mortgage Loan Schedule, which, together
with the
Eastridge Mall Note A, is secured by a Mortgage on the Eastridge
Mall Mortgaged
Property.
"Eastridge Mall Note
B": The Mortgage Note related to the Eastridge
Mall A/B Loan that is not included in the Trust, which is
subordinated in right
of payment to the Eastridge Mall Note A to the extent set forth in
the Eastridge
Mall Intercreditor Agreement.
"Eastridge Mall Note B Holder": The holder of the Eastridge
Mall
Note B, initially Bank of America, National Association.
"Eastridge Mall Noteholders": The holder of the Mortgage Note
for
the Eastridge Mall Note A Mortgage Loan and the Eastridge Mall Note
B Holder.
"Eligible Account": Any of (i) an account maintained with a
federal
or state chartered depository institution or trust company,
including, without
limitation, the Trustee (if it meets the following rating
criteria), the
long-term unsecured debt obligations of which are rated no less
than "Aa3" by
Moody's and "AA-" by S&P (or "A-" by S&P if such
depository's short-term
unsecured debt rating is no less than "A-1" by S&P) (if the
deposits are to be
held in the account for more than 30 days) (or if such account is
maintained
with PNC Bank, National Association, or KeyBank National
Association rated no
less than "A" by Moody's and with respect to S&P meets the
requirements set
forth in clause (i)), or the short-term unsecured debt obligations
of which are
rated no less than "P-1" by Moody's and "A-1" by S&P (if the
deposits are to be
held in the account for 30 days or less), in each case, at any time
funds are on
deposit therein, (ii) a segregated trust account or accounts
maintained with the
corporate trust department of a federally chartered depository
institution or
trust company, including, without limitation, the Trustee, acting
in its
fiduciary capacity and subject to the regulations regarding
fiduciary funds on
deposit therein under 12 C.F.R. ss.9.10(b) that has a combined
capital surplus
of at least $50,000,000, (iii) a segregated trust account or
accounts maintained
with the corporate trust department of a state chartered depository
institution
or trust company, including, without limitation, the Trustee,
acting in its
fiduciary capacity and subject to regulations regarding fiduciary
funds on
deposit therein substantially similar to 12 C.F.R. ss.9.10(b) that
has a
combined capital surplus of at least $50,000,000, or (iv) any other
account that
would not result in the downgrade, qualification (if applicable) or
withdrawal
of the rating then assigned by either Rating Agency to any Class of
Certificates
(as confirmed in writing by each Rating Agency).
"Emergency
Advance": Any Servicing Advance, whether or not it is a
Servicing Advance that, pursuant hereto, the Special Servicer is
required to
make or to request the Master Servicer to make, that must be made
within five
Business Days of the Special Servicer's becoming aware that it must
be made to
avoid any material penalty, any material harm to a Mortgaged
Property or any
other material adverse consequence to the Trust Fund.
"Environmental Insurance Policy": With respect to any Mortgaged
Property or REO Property, any insurance policy covering pollution
conditions
and/or other environmental conditions in effect with respect to
such Mortgaged
Property or REO Property.
"ERISA": The Employee Retirement Income Security Act of 1974,
as
amended.
"ERISA Restricted Certificate": Any Non-Investment Grade
Sequential
Pay Certificate; provided, that any such Certificate (a) will cease
to be
considered an ERISA Restricted Certificate and (b) will cease to be
subject to
the transfer restrictions contained in Section 5.02(c) if, as of
the date of a
proposed transfer of such Certificate, either (i) it is rated in
one of the four
highest generic ratings categories by a Rating Agency or (ii)
relevant
provisions of ERISA would permit transfer of such Certificate to a
Plan.
"Escrow Payment": Any payment received by the Master Servicer or
the
Special Servicer for the account of any Mortgagor for application
toward the
payment of real estate taxes, assessments, insurance premiums and
similar items
in respect of the related Mortgaged Property.
"Euroclear": Euroclear Bank S.A./N.V., as operator of the
Euroclear
System, or its successor in such capacity.
"Event of Default": One or more of the events described in
Section
7.01(a).
"Excess Interest": With respect to any ARD Loan after its
Anticipated Repayment Date, all interest accrued on the principal
balance of
such ARD Loan at the Excess Interest Rate (the payment of which
interest shall,
under the terms of such Loan, be deferred until the entire
outstanding principal
balance of such ARD Loan has been paid), together with all
interest, if any,
accrued at the related Mortgage Rate on such deferred interest.
"Excess Interest Distribution Account": The segregated account
or
sub-account of the Distribution Account created and maintained by
the Trustee
pursuant to Section 4.06, which shall be entitled "LaSalle Bank
National
Association, as Trustee, in trust for the registered Holders of
Banc of America
Commercial Mortgage Inc., Commercial Mortgage Pass-Through
Certificates, Series
2006-5, Excess Interest Distribution Account", and which must be an
Eligible
Account. The Excess Interest Distribution Account shall not be an
asset of REMIC
I or REMIC II formed hereunder.
"Excess Interest Rate": With respect to any ARD Loan after its
Anticipated Repayment Date, the incremental increase in the
Mortgage Rate for
such Loan resulting from the passage of such Anticipated Repayment
Date.
"Excess Liquidation Proceeds": An amount equal to the excess,
if
any, of (a) the Net Liquidation Proceeds from the sale or
liquidation of a
Specially Serviced Loan or REO Property, over (b) the sum of: (i)
the amount
needed to pay off the Loan or related REO Loan in full, including
any related
Workout-Delayed Reimbursement Amounts or Unliquidated Advances;
(ii) all unpaid
Advances and any unpaid Advance Interest thereon and any unpaid
principal; and
(iii) any related Liquidation Fee. For the avoidance of doubt,
Excess
Liquidation Proceeds allocable to any Note B related to an A/B Loan
shall not be
an asset of the Trust Fund or REMIC I or REMIC II.
"Excess Liquidation Proceeds Account": The segregated account
or
sub-account of the Distribution Account created and maintained by
the Trustee
pursuant to Section 3.04(c)(iv) in trust for the
Certificateholders, which shall
be entitled "LaSalle Bank National Association, as Trustee, in
trust for the
registered holders of Banc of America Commercial Mortgage Inc.,
Commercial
Mortgage Pass-Through Certificates, Series 2006-5, Excess
Liquidation Proceeds
Account".
"Exchange Act": The Securities Exchange Act of 1934, as amended,
and
the rules and regulations thereunder.
"Exchange Certificate": The certificate necessary to exchange
an
interest in a Regulation S Global Certificate for an interest in a
Domestic
Global Certificate, which is in the form of Exhibit Q attached
hereto, or the
certificate necessary to exchange an interest in a Domestic Global
Certificate
for an interest in a Regulation S Global Certificate, which is in
the form of
Exhibit O or Exhibit P, as applicable, hereto, in each case as
described in
Section 5.02(m).
"Fannie Mae": The Federal National Mortgage Association or any
successor.
"FDIC": The Federal Deposit Insurance Corporation or any
successor.
"Final Distribution Date": The final Distribution Date on which
any
distributions are to be made on the Certificates as contemplated by
Section
9.01.
"Final Recovery Determination": A determination made by the
Special
Servicer, in its reasonable, good faith judgment and in accordance
with the
Servicing Standard, with respect to any Loan or REO Property (other
than a Loan
that is paid in full and other than a Loan or REO Property, as the
case may be,
that is repurchased or replaced by the related Mortgage Loan Seller
pursuant to
the related Mortgage Loan Purchase and Sale Agreement or purchased
by the Master
Servicer, the Special Servicer or any Controlling Class
Certificateholder(s)
pursuant to Section 9.01), that there has been a recovery of all
related
Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds and
other
payments or recoveries that will ultimately be recoverable.
"FIRREA": The Financial Institutions Reform, Recovery and
Enforcement Act of 1989 (as amended).
"Fitch": Fitch Ratings or its successor in interest. If neither
Fitch nor any successor remains in existence, "Fitch" shall be
deemed to refer
to such other nationally recognized statistical rating agency or
other
comparable Person designated by the Depositor, notice of which
designation shall
be given to the Trustee, the Master Servicer, the Special Servicer
and the REMIC
Administrator, and specific ratings of Fitch herein referenced
shall be deemed
to refer to the equivalent ratings of the party so designated.
"Form 8-K Disclosure Information": As defined in Section 11.07.
"Freddie Mac": The Federal Home Loan Mortgage Corporation or
any
successor.
"Free Writing Prospectus": The meaning assigned to "Free
Writing
Prospectus" in the Underwriting Agreement.
"Global Certificates": The Certificates represented by the
Regulation S Global Certificates or the Domestic Global
Certificates.
"Grantor Trust": A segregated asset pool within the Trust Fund
consisting of (i) the Excess Interest and (ii) the Excess Interest
Distribution
Account and all funds and assets held from time to time on deposit
in the Excess
Interest Distribution Account.
"Ground Lease": The ground lease pursuant to which any
Mortgagor
holds a leasehold interest in the related Mortgaged Property and
any estoppels
or other agreements executed and delivered by the ground lessor in
favor of the
lender under the Mortgage Loan.
"Group 1 Mortgage Loan": Any Mortgage Loan identified on the
Mortgage Loan Schedule as belonging to Loan Group 1.
"Group 2 Mortgage Loan": Any Mortgage Loan identified on the
Mortgage Loan Schedule as belonging to Loan Group 2.
"Hazardous Materials": Any dangerous, toxic or hazardous
pollutants,
chemicals, wastes, or substances, including, without limitation,
those so
identified pursuant to CERCLA or any other U.S. federal, state or
local
environmental related laws and regulations (including any
applicable laws of the
Commonwealth of Puerto Rico), and specifically including, without
limitation,
asbestos and asbestos-containing materials, polychlorinated
biphenyls ("PCBs"),
radon gas, petroleum and petroleum products, urea formaldehyde and
any
substances classified as being "in inventory", "usable work in
process" or
similar classification that would, if classified as unusable, be
included in the
foregoing definition.
"Holder": See the definition of "Certificateholder" in this
Section
1.01.
"HUD-Approved Servicer": A servicer that is a mortgagee approved
by
the Secretary of Housing and Urban Development pursuant to Sections
207 and 211
of the National Housing Act.
"Independent": When used with respect to any specified Person,
any
such Person who (i) is in fact independent of the Depositor, the
Master
Servicer, the Special Servicer, the Trustee, the REMIC
Administrator and any and
all Affiliates thereof, (ii) does not have any direct financial
interest in or
any material indirect financial interest in any of the Depositor,
the Master
Servicer, the Special Servicer, the Trustee, the REMIC
Administrator or any
Affiliate thereof, and (iii) is not connected with the Depositor,
the Master
Servicer, the Special Servicer, the Trustee, the REMIC
Administrator or any
Affiliate thereof as an officer, employee, promoter, placement
agent, trustee,
partner, director or Person performing similar functions; provided,
however,
that a Person shall not fail to be Independent of the Depositor,
the Master
Servicer, the Special Servicer, the Trustee, the REMIC
Administrator or any
Affiliate thereof merely because such Person is the beneficial
owner of 1% or
less of any Class of securities issued by the Depositor, the Master
Servicer,
the Special Servicer, the Trustee, the REMIC Administrator or any
Affiliate
thereof, as the case may be; provided, further, that such ownership
constitutes
less than 1% of the total assets owned by such Person.
"Independent Contractor": Any Person that would be an
"independent
contractor" with respect to REMIC I within the meaning of Section
856(d)(3) of
the Code if REMIC I were a real estate investment trust (except
that the
ownership test set forth in that section shall be considered to be
met by (i)
any Person that owns, directly or indirectly, 35 percent or more of
any Class of
Certificates, or such other interest in any Class of Certificates
as is set
forth in an Opinion of Counsel, which shall not be an expense of
the Trustee,
the REMIC Administrator or the Trust, delivered to the Trustee and
the REMIC
Administrator), so long as REMIC I does not receive or derive any
income from
such Person and provided that the relationship between such Person
and REMIC I
is at arm's length, all within the meaning of Treasury Regulations
Section
1.856-4(b)(5), or (ii) any other Person upon receipt by the Trustee
and the
REMIC Administrator of an Opinion of Counsel, which shall be at no
expense to
the Trustee, the REMIC Administrator or the Trust, to the effect
that the taking
of any action in respect of any REO Property by such Person,
subject to any
conditions therein specified, that is otherwise herein contemplated
to be taken
by an Independent Contractor will not cause such REO Property to
cease to
qualify as "foreclosure property" within the meaning of Section
860G(a)(8) of
the Code, or cause any income realized in respect of such REO
Property to fail
to qualify as Rents from Real Property.
"Initial Class Notional Amount": With respect to the Class XC
Certificates, the initial Class XC Notional Amount thereof as of
the Closing
Date is equal to $2,243,271,167 and with respect to the Class XP
Certificates,
the initial Class XP Notional Amount thereof as of the Closing Date
is equal to
$2,195,942,000.
"Initial Class Principal Balance": With respect to any Class of
Principal Pay Certificates, the initial Class Principal Balance
thereof as of
the Closing Date, in each case as set forth in the Preliminary
Statement hereto.
"Initial Pool Balance": The aggregate Cut-off Date Balance of
all
the Mortgage Loans included in the Trust Fund as of the Closing
Date.
"Initial Purchaser": Each of Banc of America Securities LLC,
Bear,
Stearns & Co. Inc. and Barclays Capital Inc.
"Initial Resolution Period": As defined in Section 2.03.
"Institutional Accredited Investor": As defined in Section
5.02(b).
"Insurance Policy": With respect to any Loan or A/B Loan or REO
Property, any hazard insurance policy, seismic (earthquake)
insurance policy,
business interruption insurance policy, flood insurance policy,
title policy or
other insurance policy that is maintained from time to time in
respect of such
Loan (or the related Mortgaged Property) or in respect of such REO
Property, as
the case may be.
"Insurance Proceeds": Proceeds paid under any Insurance Policy,
to
the extent such proceeds are not applied to the restoration of the
related
Mortgaged Property or REO Property or released to the Mortgagor or
any other
third party as permitted under the related loan documents, in
either case, in
accordance with the Servicing Standard and with applicable law.
"Intercreditor Agreements": The Eastridge Mall Intercreditor
Agreement, the Camp Group Portfolio A/B Loan Intercreditor
Agreement and the
Seville Plaza Intercreditor Agreement.
"Interest Accrual Basis": The basis on which interest accrues
in
respect of any Mortgage Loan, any REMIC I Regular Interest or any
Class of REMIC
II Regular Certificates, consisting of one of the following: (i) a
30/360 Basis;
or (ii) an Actual/360 Basis.
"Interest Accrual
Period": With respect to each Class of REMIC I
Regular Interests and each Class of REMIC II Regular Certificates
for any
Distribution Date, the calendar month immediately preceding the
month in which
such Distribution Date occurs.
"Interest Reserve Account": The segregated account or sub-account
of
the Certificate Account created and maintained by the Master
Servicer pursuant
to Section 4.05 in trust for the Certificateholders, which shall be
entitled
"Bank of America, National Association, as Master Servicer, on
behalf of LaSalle
Bank National Association, as Trustee, in trust for the registered
holders of
Banc of America Commercial Mortgage Inc., Commercial Mortgage
Pass-Through
Certificates, Series 2006-5, Interest Reserve Account".
"Interested Person": The Depositor, each Mortgage Loan Seller,
the
Master Servicer, any Sub-Servicer, the Special Servicer, the
Trustee, any Holder
of a Certificate or any Affiliate of any such Person.
"Investment Account": As defined in Section 3.06(a).
"Investment Grade Sequential Pay Certificates": The Class A,
Class
B, Class C, Class D, Class E, Class F, Class G and Class H
Certificates.
"Investment Representation Letter": As defined in Section
5.02(b).
"IRS": The Internal Revenue Service or any successor.
"Late Collections": With respect to any Loan, all amounts
received
thereon during any Collection Period, whether as payments,
Insurance Proceeds,
Condemnation Proceeds, Liquidation Proceeds or otherwise, that
represent late
collections of the principal and/or interest portions of a Monthly
Payment
(other than a Balloon Payment) or an Assumed Monthly Payment in
respect of such
Loan due or deemed due, as the case may be, for a Due Date in a
previous
Collection Period, or for a Due Date coinciding with or preceding
the Cut-off
Date, and not previously received or recovered. With respect to any
REO Loan,
all amounts received in connection with the related REO Property
during any
Collection Period, whether as Insurance Proceeds, Condemnation
Proceeds,
Liquidation Proceeds, REO Revenues or otherwise, that represent
late collections
of the principal and/or interest portions of a Monthly Payment
(other than a
Balloon Payment) or an Assumed Monthly Payment in respect of the
related Loan or
of an Assumed Monthly Payment in respect of such REO Loan due or
deemed due, as
the case may be, for a Due Date in a previous Collection Period and
not
previously received or recovered.
"Letter of Credit": With respect to any Loan or A/B Loan, any
third-party letter of credit delivered by or at the direction of
the Mortgagor
pursuant to the terms of such Loan in lieu of the establishment of,
or deposit
otherwise required to be made into, a Reserve Fund.
"Liquidation Event": With respect to any Loan, any of the
following
events: (i) such Loan is paid in full; (ii) a Final Recovery
Determination is
made with respect to such Loan; (iii) the related Mortgage Loan (or
related REO
Loan) is repurchased by the related Mortgage Loan Seller pursuant
to Section 4
of the Mortgage Loan Purchase Agreement; (iv) the related Mortgage
Loan is
purchased by the Directing Certificateholder, the Special Servicer
or an
assignee of such Person pursuant to Section 3.18(c) or the related
Mezzanine
Loan Holder (if the related Defaulted Loan has a related Mezzanine
Loan)
pursuant to any Mezzanine Intercreditor Agreement; (v) such Loan is
purchased by
the Special Servicer or the Master Servicer pursuant to Section
9.01; or (vi) in
the case of an A/B Loan, such A/B Loan is purchased by the Note B
Holder or its
designee pursuant to the related Intercreditor Agreement. With
respect to any
REO Property (and the related REO Loan), any of the following
events: (i) a
Final Recovery Determination is made with respect to such REO
Property or (ii)
such REO Property is purchased by the Master Servicer or the
Special Servicer
pursuant to Section 9.01.
"Liquidation Expenses": All customary, reasonable and necessary
"out-of-pocket" costs and expenses due and owing (but not otherwise
covered by
Servicing Advances) in connection with the liquidation of any
Specially Serviced
Loan or REO Property pursuant to Section 3.09 or Section 3.18
(including,
without limitation, legal fees and expenses, committee or referee
fees and, if
applicable, brokerage commissions and conveyance taxes).
"Liquidation Fee": With respect to each Specially Serviced Loan
or
REO Property, the fee designated as such and payable to the Special
Servicer
pursuant to the third paragraph of Section 3.11(c). Notwithstanding
the
foregoing and for the avoidance of doubt, no Liquidation Fee shall
be payable in
connection with (a) the purchase of a Defaulted Loan by the
Majority
Certificateholder of the Controlling Class pursuant to any
applicable purchase
right set forth in Section 3.18(c) or Section 3.18 (l) or with
respect to a
purchase of a related Defaulted Loan at its fair value as
determined in Section
3.18, unless such purchase is by an assignee of the Majority
Certificateholder
of the Controlling Class or the Special Servicer, such assignee is
not an
affiliate of the Majority Certificateholder of the Controlling
Class or the
Special Servicer, such assignment is for no material consideration,
and provided
such purchase occurs or purchase right is exercised more than 90
days from the
date that the Special Servicer has initially determined the fair
value of the
related mortgage loan; (b) the purchase of any Mortgage Loan by the
holder of a
subordinate note or a Mezzanine Loan (or its designee) pursuant to
a purchase
option contained in the related intercreditor agreement, unless
such purchase
occurs or purchase right is exercised more than 90 days from the
date that the
Special Servicer has initially determined the fair value of the
related Mortgage
Loan; (c) the purchase option of the Majority Certificateholder of
the
Controlling Class, the Master Servicer or the Special Servicer
pursuant to
Section 9.01; (d) the repurchase by the related Mortgage Loan
Seller of a
Mortgage Loan so required to be repurchased by it pursuant to
Section 4 of the
related Mortgage Loan Purchase and Sale Agreement and Section 2.03
within the
time frame set forth in the Initial Resolution Period and/or the
Resolution
Extension Period (if applicable), provided that such time frame
shall never be
less than 90 days from the date that the related Mortgage Loan
Seller was first
notified of its obligation to repurchase pursuant to Section 4 of
the related
Mortgage Loan Purchase and Sale Agreement and Section 2.03,
provided such
purchase occurs within 90 days after the date that the related
Mortgage Loan
Seller was first notified of its right to repurchase such Loan
pursuant to
Section 3.18(p) or 3.18(q), as applicable; (e) in connection with a
Loss of
Value Payment by the related Mortgage Loan Seller; or (f) the
purchase of the
Puerto Rico Self Storage Portfolio Mortgage Loan by the related
Mortgage Loan
Seller pursuant to Section 3.18(n)
"Liquidation Fee Rate": With respect to each Specially Serviced
Loan
or REO Property as to which a Liquidation Fee is payable, 1.0% (100
basis
points).
"Liquidation Proceeds": All cash amounts (other than Insurance
Proceeds, Condemnation Proceeds and REO Revenues) received by the
Master
Servicer or the Special Servicer in connection with: (i) the
liquidation of a
Mortgaged Property or other collateral constituting security for a
Defaulted
Loan through trustee's sale, foreclosure sale, REO Disposition or
otherwise,
exclusive of any portion thereof required to be released to the
related
Mortgagor in accordance with applicable law and/or the terms and
conditions of
the related loan documents; (ii) the realization upon any
deficiency judgment
obtained against a Mortgagor; (iii) the purchase of a Defaulted
Loan by any
Controlling Class Certificateholder(s) pursuant to Section 3.18(c),
by the
Special Servicer pursuant to Section 3.18(c), by a Note B Holder
pursuant to the
related Intercreditor Agreement or by the related Mezzanine Loan
Holder pursuant
to the related Mezzanine Intercreditor Agreement; (iv) the
repurchase of a
Mortgage Loan by the related Mortgage Loan Seller pursuant to the
related
Mortgage Loan Purchase and Sale Agreement by the seller thereof
pursuant to any
loan purchase agreement; (v) the substitution of one or more
Replacement
Mortgage Loans for a Deleted Mortgage Loan by the related Mortgage
Loan Seller
pursuant to the related Mortgage Loan Purchase and Sale Agreement
(such cash
amounts being any Substitution Shortfall Amounts); (vi) the
purchase of a
Mortgage Loan or REO Property by the Master Servicer, the Special
Servicer or
any Controlling Class Certificateholder(s) pursuant to Section
9.01; (vii)
except for purposes of Section 3.11(c), the transfer of any Loss of
Value
Payments from the Loss of Value Reserve Fund to the Certificate
Account; or
(viii) in the case of the Puerto Rico Self Storage Portfolio
Mortgage Loan, if
such Mortgage Loan is purchased by the related Mortgage Loan Seller
pursuant to
Section 3.18(n).
"Loan": Any Mortgage Loan or Note B.
"Loan Group": Together, Loan Group 1 and Loan Group 2.
"Loan Group 1": Collectively, all of the Mortgage Loans that
are
Group 1 Mortgage Loans and any successor REO Loans with respect
thereto.
"Loan Group 1 Available Distribution Amount": With respect to
any
Distribution Date, that portion, if any, of the Available
Distribution Amount
attributable to Loan Group 1.
"Loan Group 1 Principal Distribution Amount": With respect to
any
Distribution Date, that portion, if any, of the Principal
Distribution Amount
attributable to Loan Group 1.
"Loan Group 2": Collectively, all of the Mortgage Loans that
are
Group 2 Mortgage Loans and any successor REO Loans with respect
thereto.
"Loan Group 2 Available Distribution Amount": With respect to
any
Distribution Date, that portion, if any, of the Available
Distribution Amount
attributable to Loan Group 2.
"Loan Group 2 Principal Distribution Amount": With respect to
any
Distribution Date, that portion, if any, of the Principal
Distribution Amount
attributable to Loan Group 2.
"Lock-Box Agreement": With respect to any Loan, the lock-box
agreement, if any, between the related originator and the Borrower,
pursuant to
which an account created pursuant to the related loan documents to
receive
revenues therefrom, if any, may have been established.
"Lock-Box Account": With respect to any Lock-Box Agreement, the
account(s) established pursuant to the terms of such agreement.
"Loss of Value Payment": As defined in Section 2.03(i).
"Loss of Value Reserve Fund": The "outside reserve fund" (within
the
meaning of Treasury Regulations Section 1.860G-2(h)) designated as
such pursuant
to Section 2.12. The Loss of Value Reserve Fund will be part of the
Trust, but
not part of the Grantor Trust, REMIC I or REMIC II.
"MAI": Member of the Appraisal Institute.
"Majority Certificateholder": With respect to any specified Class
or
Classes of Certificates, as of any date of determination, any
Holder or
particular group of Holders of Certificates of such Class or
Classes, as the
case may be, entitled to a majority of the Voting Rights allocated
to such Class
or Classes, as the case may be.
"Master Servicer": Bank of America, National Association, its
successor in interest or any successor master servicer appointed as
herein
provided.
"Master Servicer Remittance Amount": With respect to any Master
Servicer Remittance Date, an amount equal to (a) all amounts on
deposit in the
Certificate Account as of the commencement of business on such
Master Servicer
Remittance Date, net of (b) any portion of the amounts described in
clause (a)
of this definition that represents one or more of the following:
(i) collected
Monthly Payments that are due on a Due Date following the end of
the related
Collection Period, (ii) any unscheduled payments of principal
(including,
without limitation, Principal Prepayments) and interest,
Liquidation Proceeds
and Insurance Proceeds received after the end of the related
Collection Period,
(iii) any Prepayment Premiums received after the end of the related
Collection
Period, (iv) any amounts payable or reimbursable to any Person from
the
Certificate Account pursuant to any of clauses (ii) through (xvii)
of Section
3.05(a), (v) any Excess Liquidation Proceeds, (vi) any amounts
deposited into
the Certificate Account in error, and (vii) with respect to each
Mortgage Loan
that accrues interest on an Actual/360 Basis and any Distribution
Date relating
to the one-month period preceding the Distribution Date in each
February (and in
any January of a year that is not a leap year), an amount equal to
the related
Withheld Amount pursuant to Section 4.05; provided that, with
respect to the
Master Servicer Remittance Date that occurs in the same calendar
month as the
Final Distribution Date, the Master Servicer Remittance Amount will
be
calculated without regard to clauses (b)(i), (b)(ii) and (b)(iii)
of this
definition; provided, further, that in no event shall any amounts
be included in
the Master Servicer Remittance Amount to the extent that such
amounts are
payable to any Note B Holder pursuant to the related Intercreditor
Agreement.
"Master Servicer Remittance Date": The Business Day immediately
preceding each Distribution Date.
"Master Servicing Fee": With respect to each Loan and REO Loan,
the
fee payable to the Master Servicer pursuant to Section 3.11(a) and
from which
any Primary Servicing Fee is payable.
"Master Servicing Fee Rate": With respect to (a) each Mortgage
Loan
and any related REO Loan, the Administrative Fee Rate specified for
each such
Mortgage Loan on the Mortgage Loan Schedule minus the Trustee Fee
Rate, and (b)
with respect to each Note B and any related REO Loan, the Master
Servicing Fee
Rate shall be the same as the Master Servicing Fee Rate for the
related Mortgage
Loan.
"Material Breach": A Breach that materially and adversely
affects
the interests of the Certificateholders, or any of them, with
respect to the
affected Mortgage Loan, including but not limited to a material and
adverse
effect on any of the distributions payable with respect to any of
the
Certificates or on the value of such Certificates or such Mortgage
Loan.
"Material Document Defect": A Document Defect that materially
and
adversely affects the interests of the Certificateholders, or any
of them, with
respect to the affected Mortgage Loan, including but not limited to
a material
and adverse effect on any of the distributions payable with respect
to any of
the Certificates or on the value of such Certificates or such
Mortgage Loan.
"MERS": Mortgage Electronic Registration Systems, Inc.
"Mezzanine Intercreditor Agreement": With respect to each
Mezzanine
Loan, the related intercreditor agreement and, with respect to any
Mortgage Loan
with permitted future mezzanine indebtedness, the mezzanine
intercreditor
agreement related to such future mezzanine loan.
"Mezzanine Loan": Collectively, the mezzanine loan related to
the
Trinity Hotel Portfolio Mortgage Loan (Loan No. 47416), the
mezzanine loan
related to the Sheraton St. Louis City Center Mortgage Loan (Loan
No. 20061415),
the mezzanine loan related to the Rolfe's MHP Mortgage Loan (Loan
No. 20061718),
the mezzanine loan related to the Brittany Point Apartments
Mortgage Loan (Loan
No. 20061439), the mezzanine loan related to the Deer Park Business
Center
Mortgage Loan (Loan No. 20061534), the mezzanine loan related to
the Timbercrest
Village Mortgage Loan (Loan No. 20061749), the mezzanine loan
related to the
Willo Arms Mortgage Loan (Loan No. 20061312), the mezzanine loan
related to the
Quail Ridge Estates Mortgage Loan (Loan No. 20061727) and the
mezzanine loan
related to the Adams Pointe Mortgage Loan (Loan No. 20061783) (each
such
Mortgage Loan name and number as set forth in the Mortgage Loan
Schedule
attached hereto as Schedule I) and, with respect to any Mortgage
Loan with
permitted future mezzanine indebtedness, such future mezzanine
loan.
"Mezzanine Loan Holder": With respect to each Mezzanine Loan,
the
related holder of such Mezzanine Loan and, with respect to any
Mortgage Loan
with permitted future mezzanine indebtedness, the mezzanine lender
under such
future mezzanine loan.
"Modified Loan": Any Loan as to which any Servicing Transfer
Event
has occurred and that has been modified by the Special Servicer
pursuant to
Section 3.20 in a manner that:
(a) affects the amount or timing of any payment of principal or
interest
due thereon (other than, or in addition to, bringing current
Monthly
Payments with respect to such Loan);
(b) except as expressly contemplated by the related loan
documents,
results in
a release of the lien of the Mortgage on any material portion
of the
related Mortgaged Property without a corresponding Principal
Prepayment
in an amount or the delivery of substitute real property
collateral
with a fair market value (as is) that is not less than the fair
market
value (as is), as determined by an Appraisal delivered to the
Special
Servicer (at the expense of the related Mortgagor and upon
which
the
Special Servicer may conclusively rely), of the property to be
released;
or
(c) in the good faith and reasonable judgment of the Special
Servicer,
otherwise materially impairs the security for such Loan or
reduces
the likelihood of timely payment of amounts due thereon.
"Monthly Payment": With respect to any Loan, for any Due Date as
of
which such Loan is outstanding, the scheduled monthly payment (or,
in the case
of an ARD Loan after its Anticipated Repayment Date, the minimum
required
monthly payment, exclusive of any Excess Interest and any excess
cash flow) of
principal and/or interest on such Loan, including, without
limitation, a Balloon
Payment, that is actually payable by the related Mortgagor from
time to time
under the terms of the related Mortgage Note (as such terms may be
changed or
modified in connection with a bankruptcy or similar proceeding
involving the
related Mortgagor or a modification, waiver or amendment of such
Loan granted or
agreed to by the Master Servicer or Special Servicer pursuant to
Section 3.20
and applicable law); provided that the Monthly Payment due in
respect of any ARD
Loan after its Anticipated Repayment Date shall not include Excess
Interest.
"Moody's": Moody's Investors Service, Inc. or its successor in
interest. If neither Moody's nor any successor remains in
existence, "Moody's"
shall be deemed to refer to such other nationally recognized
statistical rating
agency or other comparable Person designated by the Depositor,
notice of which
designation shall be given to the Trustee, the Master Servicer, the
Special
Servicer and the REMIC Administrator, and specific ratings of
Moody's herein
referenced shall be deemed to refer to the equivalent ratings of
the party so
designated.
"Mortgage": With respect to any Loan, separately and
collectively,
as the context may require, each mortgage, deed of trust and/or
other similar
document or instrument (together with any rider, addendum or
amendment thereto)
securing the related Mortgage Note and creating a lien on the
related Mortgaged
Property.
"Mortgage File": With respect to any Mortgage Loan, subject to
Sections 1.04 and 2.01, collectively the following documents:
(i) (A) the original executed Mortgage Note (or, with respect
to the Pamida Portfolio Mortgage Loan, Mortgage Notes),
endorsed
(either on the face thereof or pursuant to a separate allonge)
"Pay
to the order of LaSalle Bank National Association, as Trustee,
in
trust for the registered holders of Banc of America Commercial
Mortgage Inc., Commercial Mortgage Pass-Through Certificates,
Series
2006-5, without recourse" or in blank, and further showing a
complete, unbroken chain of endorsement from the originator (if
such
originator is other than the related Mortgage Loan Seller); or
alternatively, if the original executed Mortgage Note has been
lost,
a lost note affidavit and indemnity from the related Mortgage
Loan
Seller with a copy of such Mortgage Note, and (B) in the case
of
each Note B, a copy of the executed Mortgage Note for such Note
B;
provided, that with respect to the Puerto Rico Self Storage
Portfolio Mortgage Loan, to create the security interest, the
closing counsel for such Mortgage Loan will notarize and retain
copies of the constitution of mortgage, the security agreement,
the
mortgage pledge and the Mortgage Note;
(ii) an original or a copy of the Mortgage and any intervening
assignments that precede the assignment referred to in clause
(iv)
of this definition, in each case (unless the particular item has
not
been returned from the applicable recording office) with evidence
of
recording indicated thereon;
(iii) an original or a copy of any related Assignment of
Leases (if such item is a document separate from the Mortgage)
and
of any intervening assignments thereof that precede the
assignment
referred to in clause (v) of this definition, in each case
(unless
the particular item has not been returned from the applicable
recording office) with evidence of recording indicated thereon;
(iv) subject to the provisos at the end of this paragraph, an
original executed assignment of the Mortgage in favor of
"LaSalle
Bank National Association, as Trustee, in trust for the
registered
holders of Banc of America Commercial Mortgage Inc., Commercial
Mortgage Pass-Through Certificates, Series 2006-5" or in blank,
in
recordable form (except for any missing recording information
with
respect to such Mortgage) and (B) in the case of each A/B Loan,
an
original executed assignment of the Mortgage also to LaSalle
Bank
National Association in its capacity as "lead lender" on behalf
of
the holder of the related Note B, provided that, if the related
Mortgage has not been returned from the applicable public
recording
office, such assignment of Mortgage may exclude the information
to
be provided by the recording office, and provided, further, if
the
related Mortgage has been recorded in the name of Mortgage
Electronic
Registration Systems, Inc. ("MERS") or its designee, no
assignment of Mortgage in favor of the Trustee will be required
to
be prepared or delivered and instead, the Master Servicer shall
take
all actions as are necessary to cause the Trustee to be shown
as,
and the Trustee shall take all actions necessary to confirm that
it
is shown as, the owner of the related Mortgage on the records
of
MERS for purposes of the system of recording transfers of
beneficial
ownership of mortgages maintained by MERS;
(v) an original executed assignment of any related Assignment
of Leases (if such item is a document separate from the
Mortgage),
in favor
of "LaSalle Bank National Association, as Trustee, in trust
for the registered holders of Banc of America Commercial
Mortgage
Inc., Commercial Mortgage Pass-Through Certificates, Series
2006-5"
or in blank, in recordable form (except for any missing
recording
information with respect to such Assignment of Leases) and in
the
case of each A/B Loan, also to LaSalle Bank National Association
in
its capacity as "lead lender" or on behalf of the holder of the
related Note B, provided that if the related Mortgage has been
recorded in the name of MERS or its designee, no assignment of
Assignment of Leases in favor of the Trustee will be required to
be
prepared or delivered and instead, the Master Servicer shall
take
all actions as are necessary to cause the Trustee to be shown
as,
and the Trustee shall take all actions necessary to confirm that
it
is shown as, the owner of the related Mortgage on the records
of
MERS for purposes of the system of recording transfers of
beneficial
ownership of mortgages maintained by MERS;
(vi) originals or copies of any written assumption,
modification, written assurance and substitution agreements in
those
instances where the terms or provisions of the Mortgage or
Mortgage
Note have been modified or the Mortgage Loan has been assumed,
in
each case (unless the particular item has not been returned from
the
applicable recording office) with evidence of recording
indicated
thereon if the instrument being modified or assumed is a
recordable
document;
(vii) the original or a copy of the policy of lender's title
insurance or, if such policy has not yet been issued, a
"marked-up"
pro forma title policy or commitment for title insurance marked
as
binding and countersigned by the issuer or its authorized agent
either on its face or by an acknowledged closing instruction or
escrow letter;
(viii) filed copies of any prior UCC Financing Statements in
favor of the originator of such Mortgage Loan or in favor of
any
assignee prior to the Trustee (but only to the extent the
related
Mortgage Loan Seller had possession of such UCC Financing
Statements
prior to the Closing Date) and, in connection with such UCC
Financing Statements, an original UCC-2 or UCC-3, as appropriate,
in
favor of "LaSalle Bank National Association, as Trustee, in
trust
for the registered holders of Banc of America Commercial
Mortgage
Inc., Commercial Mortgage Pass-Through Certificates, Series
2006-5"
or in blank, in a form that is complete and suitable for filing
or
recording, and sufficient to assign to the Trustee the security
interest held by the originator of the Mortgage Loan or its
assignee; provided, if the related Mortgage Loan has been
recorded
in the name of MERS or its designee, no UCC Financing Statement
in
favor of the Trustee will be required to be prepared or
delivered
and instead, the Master Servicer shall take all actions as are
necessary to cause the Trustee, on behalf of the
Certificateholders,
to be shown as, and the Trustee shall take all actions necessary
to
confirm that it is shown as, the owner of the related Mortgage
on
the records of MERS for purposes of the system of recording
transfers of beneficial ownership of mortgages maintained by
MERS;
provided, further, that with respect to the Puerto Rico Self
Storage
Portfolio Mortgage Loan, to create the security interest, the
closing counsel for such Mortgage Loan will notarize and retain
copies of the constitution of mortgage, the security agreement,
the
mortgage pledge and the Mortgage Note;
(ix) the original or a copy of any environmental indemnity
agreement relating solely to such Mortgage Loan;
(x) the original or a copy of any power of attorney, guaranty,
loan agreement, Ground Lease and/or Ground Lease estoppels
relating
to such Mortgage Loan;
(xi) any original documents (including any security
agreement(s)) relating to, evidencing or constituting
Additional
Collateral and, if applicable, the originals or copies of any
intervening assignments thereof;
(xii) the original or a copy of any Intercreditor Agreement,
co-lender agreement, agreement among noteholders or similar
agreement relating to such Mortgage Loan and a copy of any Letter
of
Credit;
(xiii) with respect to hospitality properties, a copy of the
franchise agreement, an original copy of the comfort letter and
any
transfer documents with respect to such comfort letter, if any;
and
(xiv) a list attached to each Mortgage File indicating the
documents to be included in each such Mortgage File (the
"Mortgage
Loan Checklist") which list may be modified within 180 days by
the
related Mortgage Loan Seller after the Closing Date to correct
any
errors in accordance with Section 2.02(e);
provided that whenever the term "Mortgage File" is used to refer to
documents
actually received by the Trustee or by a Custodian on its behalf
such term shall
not be deemed to include such documents and instruments required to
be included
therein unless they are actually so received; provided, further,
however, that
on the Closing Date, with respect to item (iv), the Depositor has
delivered to
the Trustee a copy of such assignment of Mortgage in blank and has
caused the
Master Servicer to retain the completed assignment of Mortgage for
recording as
described below, unless such Mortgage has been recorded in the name
of MERS or
its designee.
With respect to the Pamida Portfolio Mortgage Loan, the delivery of
the Mortgage
File by either BCRE or Citigroup shall satisfy the delivery
requirements for
both BCRE and Citigroup other than with respect to the related
Mortgage Notes.
"Mortgage Loan": Each of the mortgage loans transferred and
assigned
to the Trustee pursuant to Section 2.01 and from time to time held
in the Trust
Fund. As used herein, the term "Mortgage Loan" includes the related
Mortgage
Note, Mortgage and other security documents contained in the
related Mortgage
File.
"Mortgage Loan Checklist": As defined in the definition of
Mortgage
File.
"Mortgage Loan Purchase and Sale Agreement": Each of the
mortgage
loan purchase and sale agreements dated as of September 28, 2006:
(A) between
Bank of America and the Depositor; (B) between BCRE and the
Depositor; (C)
between Bear Stearns and the Depositor; (D) between SunTrust Bank
and the
Depositor; and (D) between Citigroup and the Depositor.
"Mortgage Loan Schedule": The list of Mortgage Loans transferred
on
the Closing Date to the Trustee as part of the Trust Fund, which
list is
attached hereto as Schedule I and may be amended from time to time
in accordance
with Section 2.03(f). The Mortgage Loan Schedule shall set forth,
among other
things, the following information with respect to each Mortgage
Loan:
(i) the loan number and control number;
(ii) the street address or addresses (including city, state
and zip code) of the related Mortgaged Property.
(iii) (a) the Mortgage Rate in effect as of the Cut-off Date
and (b) whether the Mortgage Loan accrues interest on the basis
of
the actual number of days elapsed in the relevant month of
accrual
and a 360-day year (an "Actual/360 Basis") or on the basis of a
360-day year consisting of twelve 30-day months (a "30/360
Basis");
(iv) the original principal balance;
(v) the Cut-off Date Balance;
(vi) the (A) remaining term to stated maturity and (B) Stated
Maturity Date;
(vii) the Due Date;
(viii) the amount of the Monthly Payment due on the first Due
Date following the Cut-off Date (other than with respect to
Loans
that are interest only for some (but not all) of their
respective
loan terms then in such case the amortizing debt service);
(ix) the Administrative Fee Rate (inclusive of the Master
Servicer Fee Rate, the Trustee Fee Rate, and the Primary
Servicing
Fee Rate);
(x) the Primary Servicing Fee Rate;
(xi) the Master Servicing Fee Rate;
(xii) whether the Mortgagor's interest in the related
Mortgaged Property is or includes a Ground Lease;
(xiii) whether the Mortgage Loan is a Cross-Collateralized
Mortgage Loan and, if so, a reference to the other Mortgage
Loans
that are cross collateralized with such Mortgage Loan;
(xiv) the original amortization term;
(xv) whether the Mortgage Loan is an ARD Loan;
(xvi) the applicable grace period; and
(xvii) the Loan Group to which such Mortgage Loan belongs.
The Mortgage Loan Schedule shall also set forth the aggregate
Cut-off Date Balance for all of the Mortgage Loans. Such list may
be in the form
of more than one list, collectively setting forth all of the
information
required.
"Mortgage Loan Sellers": Bank of America, BCRE, Bear Stearns,
SunTrust Bank and Citigroup.
"Mortgage Note": The original executed note evidencing the
indebtedness of a Mortgagor under a Loan, together with any rider,
addendum or
amendment thereto.
"Mortgage Pool": Collectively, all of the Mortgage Loans and
any
successor REO Loans. The Mortgage Pool does not include any Note B
or any
related REO Loan.
"Mortgage Rate": With respect to (i) any Loan on or prior to
its
Stated Maturity Date, the annualized rate at which interest is
scheduled (in the
absence of a default) to accrue on such Loan from time to time in
accordance
with the terms of the related Mortgage Note (as such may be
modified at any time
following the Closing Date) and applicable law, (ii) any Loan after
its Stated
Maturity Date, the annualized rate described in clause (i) of this
definition
determined without regard to the passage of such Stated Maturity
Date, and (iii)
any REO Loan, the annualized rate described in clause (i) or (ii)
of this
definition, as applicable, determined as if the related Loan had
remained
outstanding.
"Mortgaged Property": Individually and collectively, as the
context
may require, each real property (together with all improvements and
fixtures
thereon) subject to the lien of a Mortgage and constituting
collateral for a
Loan. With respect to any Cross-Collateralized Mortgage Loan, as
the context may
require, "Mortgaged Property" may mean, collectively, all the
Mortgaged
Properties securing such Cross-Collateralized Mortgage Loan.
"Mortgagor": The obligor or obligors on a Mortgage Note,
including
without limitation, any Person that has acquired the related
Mortgaged Property
and assumed the obligations of the original obligor under the
Mortgage Note.
"Net Aggregate Prepayment Interest Shortfall": With respect to
any
Distribution Date, the amount, if any, by which (a) the aggregate
of all
Prepayment Interest Shortfalls incurred in connection with the
receipt of
Principal Prepayments during the related Collection Period, exceeds
(b) the
amount of the Compensating Interest Payment remitted by the Master
Servicer
pursuant to Section 3.19(e) on the Master Servicer Remittance Date
related to
such Distribution Date.
"Net Assumption Application Fee": As defined in Section 3.08.
"Net Assumption Fee": As defined in Section 3.08.
"Net Cash Flow": With respect to any Mortgaged Property, the
total
operating revenues derived from such Mortgaged Property, minus the
total fixed
and variable operating expenses, capital expenditures such as
reserves, tenant
improvements and leasing commissions, incurred in respect of such
Mortgaged
Property (subject to adjustments for, among other things, (i) non
cash items
such as depreciation and amortization, and (ii) debt service on
loans secured by
the Mortgaged Property).
"Net Default Charges": With respect to any Loan or REO Loan,
the
Default Charges referred to in clause sixth of Section 3.27(a) and
clause second
of Section 3.27(c), which are payable to the Master Servicer as
Additional
Master Servicing Compensation or the Special Servicer as Additional
Special
Servicing Compensation.
"Net Investment Earnings": With respect to any Investment
Account
for any Collection Period, the amount, if any, by which the
aggregate of all
interest and other income realized during such Collection Period on
funds held
in such Investment Account, exceeds the aggregate of all losses and
investment
costs, if any, incurred during such Collection Period in connection
with the
investment of such funds in accordance with Section 3.06.
"Net Investment Loss": With respect to any Investment Account
for
any Collection Period, the amount by which the aggregate of all
losses and
investment costs, if any, incurred during such Collection Period in
connection
with the investment of funds held in such Investment Account in
accordance with
Section 3.06, exceeds the aggregate of all interest and other
income realized
during such Collection Period on such funds, but Net Investment
Loss shall not
include any loss with respect to such investment that is incurred
solely as a
result of the insolvency of the federally or state chartered
depository
institution or trust company that holds such Investment Account so
long as such
depository institution or trust company satisfied the
qualifications set forth
in the definition of Eligible Account at the time such investment
was made and
so long as such depository institution or trust company is not an
Affiliate of
either the Master Servicer or the Special Servicer.
"Net Liquidation Proceeds": The excess, if any, of all
Liquidation
Proceeds received with respect to any Specially Serviced Loan or
REO Property,
over the amount of all Liquidation Expenses incurred with respect
thereto and
all related Servicing Advances reimbursable therefrom.
"Net Modification Application Fee": As defined in Section
3.20(i).
"Net Modification Fee": As defined in Section 3.20(i).
"Net Mortgage Rate": With respect to any Loan or any related
REO
Loan, as of any date of determination, a rate per annum equal to
the related
Mortgage Rate then in effect minus the related Administrative Fee
Rate, if
applicable. For purposes of calculating the Pass-Through Rate for
each Class of
Certificates (other than the Class V Certificates and the Residual
Certificates)
from time to time, the Net Mortgage Rate for any Mortgage Loan will
be
calculated without regard to any modification, waiver or amendment
of the terms
of such Mortgage Loan subsequent to the Closing Date.
"Net Operating Income": With respect to any Mortgaged Property,
the
total operating revenues derived from such Mortgaged Property for a
specified
period, minus the total fixed and variable operating expenses
incurred in
respect of such Mortgaged Property (subject to adjustments for, and
excluding,
among other things, (i) non-cash items such as depreciation and
amortization,
(ii) capital expenditures (inclusive of replacement reserves) and
(iii) debt
service on loans secured by the Mortgaged Property).
"New Lease": Any lease of REO Property entered into at the
direction
of the Special Servicer on behalf of the Trust (and any related
Note B Holder,
to the extent of its interest), including any lease renewed,
modified or
extended on behalf of the Trust, if the Trust has the right to
renegotiate the
terms of such lease.
"Non-Investment Grade Sequential Pay Certificates": The Class
J,
Class K, Class L, Class M, Class N, Class O and Class P
Certificates.
"Non-Partitioned Loans": Each Mortgage Loan, other than the A/B
Loans.
"Non-Registered Certificate": Unless and until registered under
the
Securities Act, any Class XC, Class D, Class E, Class F, Class G,
Class H, Class
J, Class K, Class L, Class M, Class N, Class O, Class P, Class V,
Class R-I and
Class R-II Certificate.
"Non-U.S. Person": Any person other than a U.S. Person.
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance.
"Nonrecoverable P&I Advance": As evidenced by the Officer's
Certificate and supporting documentation contemplated by Section
4.03(c), any
P&I Advance previously made or to be made in respect of any
Mortgage Loan or any
REO Loan that, as determined by the Master Servicer, the Special
Servicer or, if
applicable, the Trustee, in its reasonable, good faith judgment,
based on at
least an Appraisal conducted within the 12 months preceding any
such
determination, will not be ultimately recoverable (together with
Advance
Interest accrued thereon) from Default Charges, Insurance Proceeds,
Condemnation
Proceeds, Liquidation Proceeds or any other recovery on or in
respect of such
Mortgage Loan; provided, however, that the Special Servicer may, at
its option,
in consultation with the Directing Certificateholder, make a
determination in
accordance with the Servicing Standard, that any P&I Advance
previously made or
proposed to be made is a Nonrecoverable P&I Advance and shall
deliver to the
Master Servicer and the Trustee notice of such determination and
any such
determination shall be conclusive and binding on the Master
Servicer and the
Trustee.
"Nonrecoverable Servicing Advance": Any Servicing Advance made
or
proposed to be made in respect of a Loan or REO Property that, as
determined by
the Master Servicer or, if applicable, the Special Servicer or the
Trustee in
its reasonable and good faith judgment, will not be recoverable
(together with
Advance Interest accrued thereon), or that in fact was not
ultimately recovered,
from Default Charges, Insurance Proceeds, Liquidation Proceeds or
any other
recovery on or in respect of such Loan or REO Property (without
giving effect to
potential recoveries on deficiency judgments or recoveries from
guarantors);
provided, however, that the Special Servicer may, at its option,
make a
determination in accordance with the Servicing Standard and Section
3.11(h),
that any Servicing Advance previously made or proposed to be made
is a
Nonrecoverable Servicing Advance and shall deliver to the Master
Servicer and
the Trustee notice of such determination and any such determination
shall be
conclusive and binding on the Master Servicer and the Trustee.
"Note B Holder": Any holder of a Note B.
"Note B": Any of the Eastridge Mall Note B, the Camp Group
Portfolio
Note B and the Seville Plaza Note B.
"Officer's Certificate": A certificate signed by a Servicing
Officer
of the Master Servicer, the Special Servicer or any Additional
Servicer, a
Responsible Officer of the Trustee or any authorized officer of a
Mortgage Loan
Seller, as the case may be.
"Opinion of Counsel": A written opinion of counsel (who must,
in
connection with any opinion rendered pursuant hereto with respect
to tax matters
or a resignation under Section 6.04, be Independent counsel, but
who otherwise
may be salaried counsel for the Depositor, the Trustee, the REMIC
Administrator,
the Master Servicer or the Special Servicer), which written opinion
is
acceptable and delivered to the addressee(s).
"Option Holder": As defined in Section 3.18(c).
"Option Period": As defined in Section 3.18(c).
"Option Price": As defined in Section 3.18(c).
"OTS": The Office of Thrift Supervision or any successor
thereto.
"Ownership Interest": As to any Certificate, any ownership or
security interest in such Certificate as the Holder thereof and any
other
interest therein, whether direct or indirect, legal or beneficial,
as owner or
as pledgee.
"P&I Advance": As to any Loan or REO Loan, any advance made by
the
Master Servicer or the Trustee pursuant to Section 4.03.
"Pamida Portfolio Mortgage Loan": The Mortgage Loan evidenced by
two
(2) promissory notes together that is secured on a collective basis
by the same
Mortgage encumbering the property identified on the Mortgage Loan
Schedule as
Pamida Portfolio (the "Pamida Portfolio Mortgaged Property"), one
with an
original principal balance of $34,406,932 originated by BCRE and
the other with
an original principal balance of $34,406,932 originated by
Citigroup.
"Pamida Portfolio Mortgage Loan Portion": As defined in Section
2.03(j).
"Pass-Through Rate": With respect to any Class of Sequential
Pay
Certificates, the rate per annum specified as such in respect of
such Class of
Certificates in the Preliminary Statement hereto. With respect to
the Class XC
and Class XP Certificates, for any Distribution Date, the Class XC
Pass-Through
Rate and the Class XP Pass-Through Rate, respectively.
"Past Grace Period Loan": With respect to any Master Servicer
Remittance Date, any Loan having any Monthly Payment remaining
unpaid past its
Due Date and past any applicable grace period for such Monthly
Payment as of the
Determination Date on the same calendar month.
"Payment Priority": With respect to any Class of Certificates
(other
than the Class V Certificates), the priority of the Holders thereof
in respect
of the Holders of the other Classes of Certificates to receive
distributions out
of the Available Distribution Amount for any Distribution Date. The
Payment
Priority of the respective Classes of Certificates shall be, in
descending
order, as follows: first, to the respective Classes of Senior
Certificates;
second, to the Class A-M Certificates; third, to the Class A-J
Certificates;
fourth, to the Class B Certificates; fifth, to the Class C
Certificates; sixth,
to the Class D Certificates; seventh, to the Class E Certificates;
eighth, to
the Class F Certificates; ninth, to the Class G Certificates;
tenth, to the
Class H Certificates; eleventh, to the Class J Certificates;
twelfth, to the
Class K Certificates; thirteenth, to the Class L Certificates;
fourteenth, to
the Class M Certificates; fifteenth, to the Class N Certificates;
sixteenth, to
the Class O Certificates; seventeenth, to the Class P Certificates;
and last,
the respective Classes of Residual Certificates.
"Percentage Interest": With respect to any REMIC II Regular
Certificate, the portion of the relevant Class evidenced by such
Certificate,
expressed as a percentage, the numerator of which is the
Certificate Principal
Balance or Certificate Notional Amount, as the case may be, of such
Certificate
as of the Closing Date, as specified on the face thereof, and the
denominator of
which is the Initial Class Principal Balance or Initial Class
Notional Amount,
as the case may be, of the relevant Class. With respect to a Class
V Certificate
or a Residual Certificate, the percentage interest in distributions
to be made
with respect to the relevant Class, as stated on the face of such
Certificate.
"Performance Certification": As defined in Section 11.06.
"Performing Loan": As of any date of determination, any Loan as
to
which no Servicing Transfer Event then exists.
"Performing Party": As
defined in Section 11.12.
"Permitted Investments": Any one or more of the following
obligations:
(a) direct obligations of, or obligations fully guaranteed as
to
timely
payment of principal and interest by, the United States or any
agency or
instrumentality thereof, provided such obligations are backed
by
the full
faith and credit of the United States;
(b) repurchase obligations with respect to any security described
in
clause (a)
of this definition, provided that the long-term unsecured debt
obligations of the party agreeing to repurchase such obligations
are rated
"Aaa" by
Moody's and "AAA" by S&P;
(c) federal funds, uncertificated certificates of deposit, time
deposits
and bankers' acceptances (having original maturities of not
more
than 365
days) of any bank or trust company organized under the laws of
the United
States or any state, provided that the short-term unsecured
debt obligations of
such bank or trust company are rated no less than
"P-1" by
Moody's and "A-1+" by S&P;
(d) commercial paper (having original maturities of not more
than
365 days)
of any corporation incorporated under the laws of the United
States or
any state thereof rated no less than "P-1" by Moody's, and
"A-1+" by
S&P;
(e) units of money market funds that maintain a constant asset
value
and that
are rated in the highest applicable rating category by each of
S&P
(i.e., "AAAm" or "AAAmG") and Moody's (or if not rated by Moody's
a
confirmation from Moody's that such money market fund is
acceptable); and
(f) any other obligation or security that would not result in
the
downgrade,
qualification (if applicable) or withdrawal of the rating then
assigned
by any of the Rating Agencies to any Class of Certificates,
evidence
of which shall be confirmed in writing by each Rating Agency to
the
Trustee;
provided that no investment described hereunder shall evidence
either the right
to receive (a) only interest with respect to such investment or (b)
a yield to
maturity greater than 120% of the yield to maturity at par of the
underlying
obligations; and provided, further, that no investment described
hereunder may
be purchased at a price greater than par if such investment may be
prepaid or
called at a price less than its purchase price prior to stated
maturity; and
provided, further, that each investment described hereunder shall,
by its terms,
have a predetermined fixed amount of principal due at maturity
(that cannot vary
or change) and either a fixed interest rate or variable interest
rate tied to a
single interest rate index plus a single fixed spread; and
provided, further,
that each investment described hereunder shall be a "cash flow
investment", as
defined in the REMIC Provisions; and provided, further, that no
investment
described hereunder shall have a maturity in excess of one year;
and provided,
further, that no investment described hereunder shall be liquidated
prior to its
maturity date; and provided, further, that no investment described
hereunder may
have an "r" highlighter or other comparable qualifier attached to
its rating.
"Permitted Mezzanine Loan Holder": With respect to the
Mezzanine
Loans, any "qualified transferee" with respect to which each Rating
Agency has
confirmed in writing that the holding of the related Mezzanine Loan
by such
Person would not cause a qualification, downgrade or withdrawal of
any of such
Rating Agency's then-current ratings on the Certificates or that
otherwise meets
the qualifications set forth in the related Mezzanine Intercreditor
Agreement to
be a "qualified transferee".
"Permitted Transferee": Any Transferee of a Residual
Certificate
other than any of a Plan or a Person acting on behalf of or using
the assets of
a Plan, a Disqualified Organization, a Disqualified Non-U.S.
Person, an entity
treated as a U.S. partnership for federal income tax purposes if
any of its
direct or indirect partners (other than through a U.S. corporation)
is (or is
permitted to be under the related partnership agreement) a
Disqualified Non-U.S.
Person or a U.S. Person with respect to whom income on a Residual
Certificate is
attributable to a foreign permanent establishment or fixed base,
within the
meaning of an applicable income tax treaty, of such Person or any
other U.S.
Person or any nominee, agent or middleman of any of the above.
"Person": Any individual, corporation, partnership, joint
venture,
association, joint-stock company, trust, unincorporated
organization, limited
liability company or government or any agency or political
subdivision thereof.
"Phase I Environmental Assessment": A "Phase I assessment" or,
in
the case of any Loan having an initial principal balance under
$1,000,000, a
transaction screen, as described in, and meeting the criteria of,
the American
Society of Testing Materials Standard Sections 1527-99 or any
successor thereto
published by the American Society of Testing Materials.
"Plan": As defined in Section 5.02(c).
"Pool REO Account": A segregated custodial account or accounts
created and maintained by the Special Servicer pursuant to Section
3.16(b) on
behalf of the Trustee in trust for the Certificateholders, which
shall be
entitled "Midland Loan Services, Inc., as Special Servicer, for the
benefit of
LaSalle Bank National Association, as Trustee, in trust for
registered Holders
of Banc of America Commercial Mortgage Inc., Commercial Mortgage
Pass-Through
Certificates, Series 2006-5, REO Account". Any such account or
accounts shall be
an Eligible Account.
"Post CAP A/B Loan": Any A/B Loan following the occurrence and
during the continuance of a related Control Appraisal Period.
"Prepayment Assumption": The assumption that no Mortgage Loan
(other
than an ARD Loan) is prepaid prior to its Stated Maturity Date and
that no ARD
Loan is prepaid prior to, but each is paid in its entirety on, its
Anticipated
Repayment Date, such assumption to be used for determining the
accrual of
original issue discount, market discount and premium, if any, on
the Mortgage
Loans, the REMIC I Regular Interests and the REMIC II Regular
Certificates for
federal income tax purposes.
"Prepayment Interest Excess": With respect to any Loan that was
subject to a Principal Prepayment in full or in part made on or
prior to the
Determination Date in any calendar month but after such Loan's Due
Date, any
payment of interest (net of related Master Servicing Fees and
Excess Interest
and exclusive of Prepayment Premiums) actually collected from the
related
Mortgagor from and after such Due Date.
"Prepayment Interest Shortfall": With respect to any Loan that
was
subject to a Principal Prepayment in full or in part made after
the
Determination Date in any calendar month, the amount of uncollected
interest
(determined without regard to any Prepayment Premium that may have
been
collected and exclusive of, in the case of an ARD Loan after its
Anticipated
Repayment Date, Excess Interest) that would have accrued at a per
annum rate
equal to the sum of the Net Mortgage Rate for such Loan plus the
Trustee Fee
Rate, on the amount of such Principal Prepayment during the period
commencing on
the date as of which such Principal Prepayment was applied to such
Loan and
ending on the last day of such calendar month, inclusive.
"Prepayment Premium": Any premium, penalty or fee paid or
payable,
as the context requires, by a Mortgagor in connection with a
Principal
Prepayment on, or other early collection of principal of, a Loan or
any
successor REO Loan.
"Primary Collateral": The Mortgaged Property directly securing
a
Cross-Collateralized Mortgage Loan excluding, however, any
Mortgaged Property as
to which the related lien may only be foreclosed upon solely
because of the
cross-collateralization of such Mortgage Loans.
"Primary Servicing Fee": With respect to each Mortgage Loan that
is
subject to a Sub-Servicing Agreement as of the Closing Date, the
monthly fee
payable to the Sub-Servicer by the Master Servicer from the Master
Servicing
Fee, which monthly fee accrues at the Primary Servicing Fee
Rate.
"Primary Servicing Fee Rate": With respect to each Mortgage
Loan
that is subject to a Sub-Servicing Agreement as of the Closing
Date, the rate
per annum specified as such in the Mortgage Loan Schedule.
"Primary Servicing Office": With respect to the Master Servicer,
the
office thereof primarily responsible for performing its respective
duties under
this Agreement, initially located in Charlotte, North Carolina,
and, with
respect to the Special Servicer, the office thereof primarily
responsible for
performing its respective duties under this Agreement, initially
located in
Kansas.
"Principal Distribution Amount": With respect to any
Distribution
Date and in respect of any Mortgage Loan, the aggregate of the
Current Principal
Distribution Amount for such Distribution Date and, if such
Distribution Date is
subsequent to the initial Distribution Date, the excess, if any, of
the
Principal Distribution Amount for the preceding Distribution Date,
over the
aggregate distributions of principal made on the Sequential Pay
Certificates on
the preceding Distribution Date; provided that the Principal
Distribution Amount
for any Distribution Date shall be reduced by the amount of any
reimbursements
of Nonrecoverable Advances or Workout-Delayed Reimbursement Amounts
plus
interest on such Nonrecoverable Advances or Workout-Delayed
Reimbursement
Amounts that are paid or reimbursed from principal collections on
the Mortgage
Loans in a period during which such principal collections would
have otherwise
been included in the Principal Distribution Amount for such
Distribution Date
(provided, that if any of the amounts that were reimbursed from
principal
collections on the Mortgage Loans are subsequently recovered on the
related
Mortgage Loan, such recovery will increase the Principal
Distribution Amount for
the Distribution Date related to the period in which such recovery
occurs).
"Principal Pay Certificates": Collectively, the Sequential Pay
Certificates.
"Principal Prepayment": Any voluntary payment of principal made
by
the Mortgagor on a Loan that is received in advance of its
scheduled Due Date
and that is not accompanied by an amount of interest (without
regard to any
Prepayment Premium that may have been collected) representing
scheduled interest
due on any date or dates in any month or months subsequent to the
month of
prepayment.
"Prohibited Actions": As defined in Section 3.21(f).
"Prospectus Supplement": That certain prospectus supplement
dated
September 28, 2006, relating to the Class A-1, Class A-2, Class
A-3, Class A-AB,
Class A-4, Class A-1A, Class XP, Class A-M, Class A-J, Class B and
Class C
Certificates, that is a supplement to the Base Prospectus.
"Puerto Rico Self Storage Portfolio Gross-Up Payment": As defined
in
Section 23 of the Mortgage Loan Purchase Agreement, between Bank of
America and
the Depositor.
"Puerto Rico Self Storage Portfolio Mortgage Loan": The
Mortgage
Loan identified as Loan No. 3401554 in the Mortgage Loan Schedule
attached
hereto as Schedule I.
"Purchase Option": As defined in Section 3.18(c).
"Purchase Price": With respect to any Mortgage Loan, a price
equal
to the unpaid principal balance of the Mortgage Loan as of the date
of purchase,
together with (a) all accrued and unpaid interest (excluding, in
the case of an
ARD Loan after its Anticipated Repayment Date, Excess Interest) on
the Mortgage
Loan at the related Mortgage Rate up to but not including the Due
Date in the
Collection Period of purchase, (b) all related unreimbursed Master
Servicing
Fees, Special Servicing Fees, Trustee Fees and Servicing Advances
that are
unreimbursed from related collections on such Mortgage Loan, (c)
all accrued and
unpaid Advance Interest in respect of related Advances, (d) any
Additional Trust
Fund Expenses in respect of such Mortgage Loan (including any
Additional Trust
Fund Expenses previously reimbursed or paid by the Trust Fund but
not so
reimbursed by the related Mortgagor or other party or from
Insurance Proceeds or
Condemnation Proceeds or otherwise), (e) Liquidation Fees (if any)
payable in
connection with a purchase of a Mortgage Loan and (f) any cost,
fees and
expenses of enforcement (including attorneys fees) of a repurchase
obligation
pursuant to Section 2.03(h). With respect to any REO Property, a
price equal to
the unpaid principal balance of the related REO Loan as of the date
of purchase,
together with (a) all accrued and unpaid interest (excluding, in
the case of an
ARD Loan after its Anticipated Repayment Date, Excess Interest) on
such REO Loan
at the related Mortgage Rate to but not including the Due Date in
the Collection
Period of purchase, (b) all related Master Servicing Fees, Special
Servicing
Fees, Trustee Fees and Servicing Advances that are unreimbursed
from related
collections on such REO Property, (c) all accrued and unpaid
Advance Interest in
respect of related Advances, (d) any Additional Trust Fund Expenses
in respect
of such REO Property (including any Additional Trust Fund Expenses
previously
reimbursed or paid by the Trust Fund but not so reimbursed by the
related
Mortgagor or other party or from Insurance Proceeds or Condemnation
Proceeds or
otherwise), (e) Liquidation Fees (if any) payable in connection
with a purchase
of a Mortgage Loan and (f) any cost, fees and expenses of
enforcement (including
attorneys fees) of a repurchase obligation pursuant to Section
2.03. The
Purchase Price of any Mortgage Loan or REO Property is intended to
include,
without limitation, principal and interest previously advanced with
respect
thereto and not previously reimbursed. With respect to the Pamida
Portfolio
Mortgage Loan, the Purchase Price for each applicable Mortgage Loan
Seller will
be its respective percentage interest of the total Purchase Price
for the Pamida
Portfolio Mortgage Loan. The percentage interest with respect to
the Pamida
Portfolio Mortgage Loan shall be 50% for BCRE and 50% for
Citigroup.
"Qualified Appraiser": In connection with the appraisal of any
Loan,
Mortgaged Property or REO Property, an Independent MAI-designated
appraiser with
at least five years of experience in respect of the relevant
geographic location
and property type.
"Qualified Bidder": As defined in Section 7.01(d).
"Qualified Institutional Buyer": As defined in Section 5.02(b).
"Qualified Insurer": An insurance company or security or
bonding
company qualified to write the related Insurance Policy in the
relevant
jurisdiction.
"Qualifying Substitute
Mortgage Loan": In connection with the
replacement of a Defective Mortgage Loan as contemplated by Section
2.03, any
other mortgage loan that, on the date of substitution, (i) has a
principal
balance, after deduction of the principal portion of any unpaid
Monthly Payment
due on or before the date of substitution, not in excess of the
Stated Principal
Balance of the Defective Mortgage Loan; (ii) is accruing interest
at a fixed
rate of interest at least equal to that of the Defective Mortgage
Loan; (iii)
has the same Due Date as, and a grace period for delinquent Monthly
Payments
that is no longer than, the Due Date and grace period,
respectively, of the
Defective Mortgage Loan; (iv) is accruing interest on the same
basis as the
Defective Mortgage Loan (for example, on the basis of a 360-day
year consisting
of twelve 30-day months); (v) has a remaining term to stated
maturity not
greater than, and not more than two years less than, that of the
Defective
Mortgage Loan and, in any event, has a maturity date not later than
two years
prior to the Rated Final Distribution Date; (vi) has a then
current
loan-to-value ratio not higher than, and a then current debt
service coverage
ratio not lower than, the loan-to-value ratio and debt service
coverage ratio,
respectively, of the Defective Mortgage Loan as of the Closing
Date; (vii) has
comparable prepayment restrictions to those of the Defective
Mortgage Loan,
(viii) will comply (except in a manner that would not be adverse to
the
interests of the Certificateholders (as a collective whole) in or
with respect
to such mortgage loan), as of the date of substitution, with all of
the
representations relating to the Defective Mortgage Loan set forth
in or made
pursuant to the related Mortgage Loan Purchase and Sale Agreement;
(ix) has a
Phase I Environmental Assessment and a property condition report
relating to the
related Mortgaged Property in its Servicing File, which Phase I
Environmental
Assessment will evidence that there is no material adverse
environmental
condition or circumstance at the related Mortgaged Property for
which further
remedial action may be required under applicable law, and which
property
condition report will evidence that the related Mortgaged Property
is in good
condition with no material damage or deferred maintenance; and (x)
constitutes a
"qualified replacement mortgage" within the meaning of Section
860G(a)(4) of the
Code; provided, however, that if more than one mortgage loan is to
be
substituted for any Defective Mortgage Loan, then all such proposed
Replacement
Mortgage Loans shall, in the aggregate, satisfy the requirement
specified in
clause (i) of this definition and each such proposed Replacement
Mortgage Loan
shall, individually, satisfy each of the requirements specified in
clauses (ii)
through (x) of this definition; and provided, further, that no
mortgage loan
shall be substituted for a Defective Mortgage Loan unless (x) such
prospective
Replacement Mortgage Loan shall be acceptable to the Directing
Certificateholder
(or, if there is no Directing Certificateholder then serving, to
the Holders of
Certificates representing a majority of the Voting Rights allocated
to the
Controlling Class), in its (or their) sole discretion, and (y) each
Rating
Agency shall have confirmed in writing to the Trustee that such
substitution
will not in and of itself result in an Adverse Rating Event with
respect to any
Class of Rated Certificates (such written confirmation to be
obtained by, and at
the expense of, the related Mortgage Loan Seller effecting the
substitution).
"Rated Certificate": Any of the Certificates to which a rating
has
been assigned by either Rating Agency at the request of the
Depositor.
"Rated Final Distribution Date": As to each Class of
Certificates,
the Distribution Date in September 2047.
"Rating Agency": Each of Moody's and S&P, or their successors
in
interest.
"Realized Loss": With respect to each Defaulted Loan as to which
a
Final Recovery Determination has been made, or with respect to any
related REO
Loan as to which a Final Recovery Determination has been made as to
the related
REO Property, an amount (not less than zero) equal to (i) the
unpaid principal
balance of such Loan or REO Loan, as the case may be, as of the Due
Date related
to the Collection Period in which the Final Recovery Determination
was made,
plus (ii) all accrued but unpaid interest on such Loan or REO Loan,
as the case
may be, at the related Mortgage Rate to but not including the Due
Date related
to the Collection Period in which the Final Recovery Determination
was made,
plus (iii) any related unreimbursed Servicing Advances as of the
commencement of
the Collection Period in which the Final Recovery Determination was
made,
together with any new related Servicing Advances made during such
Collection
Period, minus (iv) all payments and proceeds, if any, received in
respect of
such Collection Period related to the Loan or REO Loan, as the case
may be,
during the Collection Period in which such Final Recovery
Determination was made
(net of any related Liquidation Expenses paid therefrom).
With respect to any Loan as to which any portion of the
outstanding
principal or accrued interest owed thereunder was forgiven in
connection with a
bankruptcy or similar proceeding involving the related Mortgagor or
a
modification, waiver or amendment of such Loan granted or agreed to
by the
Master Servicer or Special Servicer pursuant to Section 3.20, the
amount of such
principal or past due interest (other than any Default Interest) so
forgiven.
With respect to any Loan as to which the Mortgage Rate thereon
has
been permanently reduced and not recaptured for any period in
connection with a
bankruptcy or similar proceeding involving the related Mortgagor or
a
modification, waiver or amendment of such Loan granted or agreed to
by the
Master Servicer or Special Servicer pursuant to Section 3.20, the
amount of the
consequent reduction, if any, in the interest portion of each
successive Monthly
Payment due thereon. Each such Realized Loss shall be deemed to
have been
incurred on the Due Date for each affected Monthly Payment.
With respect to any A/B Loan, Realized Losses shall be deemed
allocated first to the related subordinate Note B and then to the
related senior
Note A.
"Record Date": With respect to each Class of Certificates, for
any
Distribution Date, the last Business Day of the calendar month
immediately
preceding the month in which such Distribution Date occurs.
"Registered Certificates": Any Certificate that has been
registered
under the Securities Act.
"Regulation AB": Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. ss.ss.229.1100-229.1123, as such may be
amended from
time to time, and subject to such clarification and interpretation
as have been
provided by the Commission in the adopting release (Asset-Backed
Securities,
Securities Act Release No. 33-8518, 70 Fed. Reg. 1506 - 1631 (Jan.
7, 2005)) or
by the staff of the Commission, or as may be provided by the
Commission or its
staff from time to time.
"Regulation S": Regulation S under the Securities Act.
"Regulation S Certificate": A certificate in the form of Exhibit
N
attached hereto.
"Regulation S Global Certificate": A global certificate
representing
interests in a Class of Certificates as provided in Section
5.03(g), initially
sold in offshore transactions in reliance on Regulation S in fully
registered
form without interest coupons.
"Reimbursement Rate": The rate per annum applicable to the
accrual
of Advance Interest, which rate per annum shall be equal to the
"prime rate" as
published in the "Money Rates" section of The Wall Street Journal,
as such
"prime rate" may change from time to time. If The Wall Street
Journal ceases to
publish such "prime rate", then the Trustee, in its sole
discretion, shall
select an equivalent publication that publishes such "prime rate";
and if such
"prime rate" is no longer generally published or is limited,
regulated or
administered by a governmental or quasi governmental body, then the
Trustee
shall select a comparable interest rate index. In either case, such
selection
shall be made by the Trustee in its sole discretion and the Trustee
shall notify
the Master Servicer and the Special Servicer in writing of its
selection.
"Release Date": The 40th day after the later of (i) the
commencement
of the offering of the Certificates and (ii) the Closing Date.
"Relevant Servicing Criteria": The Servicing Criteria applicable
to
the various parties, as set forth on Schedule VIII attached hereto.
For the
avoidance of doubt, multiple parties can have responsibility for
the same
Relevant Servicing Criteria. With respect to a Servicing Function
Participant
engaged by the Trustee, the Master Servicer or the Special
Servicer, the term
"Relevant Servicing Criteria" may refer to a portion of the
Relevant Servicing
Criteria applicable to the Master Servicer, the Special Servicer or
the Trustee.
"REMIC": A "real estate mortgage investment conduit" as defined
in
Section 860D of the Code.
"REMIC Administrator": LaSalle Bank National Association, its
successor in interest, or any successor REMIC administrator
appointed as herein
provided.
"REMIC I": A segregated pool of assets subject hereto and to be
administered hereunder, with respect to which a REMIC election is
to be made,
consisting of: (i) the Mortgage Loans (other than Excess Interest)
as from time
to time are subject to this Agreement and all payments under and
proceeds of
such Mortgage Loans received or receivable after the Cut-off Date
(other than
payments of principal, interest and other amounts due and payable
on such
Mortgage Loans on or before the Cut-off Date), together with all
documents,
Escrow Payments and Reserve Funds delivered or caused to be
delivered hereunder
by the related Mortgage Loan Seller with respect to such Mortgage
Loans, (ii)
any REO Property acquired in respect of a Mortgage Loan and all
payments and
proceeds of such REO Property; (iii) the rights of the Depositor
under Sections
1, 2, 3, 4, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20 and 21 of the
Mortgage Loan
Purchase and Sale Agreements (and Section 23 of the Mortgage Loan
Purchase and
Sale Agreement between Bank of America and the Depositor), and (v)
such amounts
on or with respect to clauses (i), or (ii) of this definition as
from time to
time are deposited into the Distribution Account, the Certificate
Account, the
Interest Reserve Account and the REO Account (if established) and
the Excess
Liquidation Proceeds Account (if established), and in the case of
an A/B Loan,
to the extent of the Trust's interest in each of the foregoing.
"REMIC I Distribution Account": The segregated account or
accounts
created and maintained as a separate trust account or accounts by
the Trustee
pursuant to Section 3.04, which shall be entitled "LaSalle Bank
National
Association, as Trustee, in trust for Holders of Banc of America
Commercial
Mortgage Inc., Commercial Mortgage Pass-Through Certificates,
Series 2006-5,
REMIC I Distribution Account" and which account shall be an
Eligible Account and
a sub-account of the Distribution Account.
"REMIC I Principal Balance": The principal amount of any REMIC
I
Regular Interest outstanding as of any date of determination. As of
the Closing
Date, the REMIC I Principal Balance of each REMIC I Regular
Interest shall equal
the initial REMIC I Principal Balance as set forth in the
Preliminary Statement
hereto. On each Distribution Date, the REMIC I Principal Balance of
each REMIC I
Regular Interest shall be permanently reduced by all distributions
of principal
deemed to have been made in respect of such REMIC I Regular
Interest on such
Distribution Date pursuant to Section 4.01(a), and shall be further
permanently
reduced on such Distribution Date by all Realized Losses and
Additional Trust
Fund Expenses deemed to have been allocated thereto on such
Distribution Date
pursuant to Section 4.04(b).
"REMIC I Regular Interest": Any of the separate
non-certificated
beneficial ownership interests in REMIC I issued hereunder and
designated as a
"regular interest" in REMIC I, as described in the Preliminary
Statement hereto.
"REMIC I Remittance Rate": With respect to any REMIC I Regular
Interest for any Distribution Date, the Weighted Average Adjusted
Net Mortgage
Rate.
"REMIC II": A segregated pool of assets subject hereto and to
be
administered hereunder, and consisting of all of the REMIC I
Regular Interests
and amounts distributed thereon as from time to time are held in
the REMIC II
Distribution Account.
"REMIC II Certificate": Any Certificate, other than a Class R-I
Certificate or Class V Certificate.
"REMIC II Distribution Account": The segregated account or
accounts
created and maintained as a separate trust account or accounts by
the Trustee
pursuant to Section 3.04, which shall be entitled "LaSalle Bank
National
Association, as Trustee, in trust for Holders of Banc of America
Commercial
Mortgage Inc., Commercial Mortgage Pass-Through Certificates,
Series 2006-5,
REMIC II Distribution Account" and which account shall be an
Eligible Account
and a sub-account of the Distribution Account.
"REMIC II Regular Certificate": Any REMIC II Certificate, other
than
a Class R-II Certificate.
"REMIC Provisions": Provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear
at Sections
860A through 860G of Subchapter M of Chapter 1 of the Code, and
related
provisions, and temporary and final Treasury regulations (or
proposed
regulations that would apply by reason of their proposed effective
date to the
extent not inconsistent with temporary or final regulations) and
any rulings
promulgated thereunder, as the foregoing may be in effect from time
to time.
"Rents from Real Property": With respect to any REO Property,
gross
income of the character described in Section 856(d) of the Code,
which income,
subject to the terms and conditions of that Section of the Code in
its present
form, does not include:
(a) except as provided in Section 856(d)(4) or (6) of the Code,
any
amount
received or accrued, directly or indirectly, with respect to
such
REO
Property, if the determination of such amount depends in whole or
in
part on
the income or profits derived by any Person from such property
(unless
such amount is a fixed percentage or percentages of receipts or
sales and
otherwise constitutes Rents from Real Property);
(b) any amount received or accrued, directly or indirectly, from
any
Person if
the Trust Fund owns directly or indirectly (including by
attribution) a ten
percent or greater interest in such Person determined
in
accordance with Sections 856(d)(2)(B) and (d)(5) of the Code;
(c) any amount received or accrued, directly or indirectly,
with
respect to
such REO Property if any Person Directly Operates such REO
Property;
(d) any amount charged for services that are not customarily
furnished
in connection with the rental of property to tenants in
buildings
of a similar class in the same geographic market as such REO
Property
within the meaning of Treasury Regulations Section
1.856-4(b)(1)
(whether
or not such charges are separately stated); and
(e) rent attributable to personal property unless such personal
property
is leased under, or in connection with, the lease of such REO
Property
and, for any taxable year of the Trust Fund, such rent is no
greater
than 15 percent of the total rent received or accrued under, or
in
connection
with, the lease.
"REO Account": The Pool REO Account and/or an A/B Loan REO
Account,
as applicable.
"REO Acquisition": The acquisition of an REO Property for
federal
income tax purposes pursuant to Treasury Regulations Section
1.856-6.
"REO
Disposition": The sale or other disposition of the REO Property
pursuant to Section 3.18.
"REO Extension": As defined in Section 3.16(a).
"REO Property": A Mortgaged Property acquired by the Special
Servicer on behalf of the Trustee for the benefit of the
Certificateholders
(and, in the case of a related Mortgaged Property securing an A/B
Loan, for the
benefit of the Certificateholders and the Note B Holder, as their
interests may
appear) pursuant to Section 3.09 through foreclosure, acceptance of
a
deed-in-lieu of foreclosure or otherwise in accordance with
applicable law in
connection with the default or imminent default of a Loan. For the
avoidance of
doubt, REO Property allocable to a Note B shall not be an asset of
the Trust
Fund or REMIC I or REMIC II.
"REO Revenues": All income, rents, profits and proceeds derived
from
the ownership, operation or leasing of any REO Property.
"REO Loan": The mortgage loan deemed for purposes hereof to be
outstanding with respect to each REO Property acquired in respect
of any Loan.
Each REO Loan shall be deemed to have an initial unpaid principal
balance and
Stated Principal Balance equal to the unpaid principal balance and
Stated
Principal Balance, respectively, of the predecessor Loan as of the
date of the
related REO Acquisition. In addition, all Monthly Payments (other
than any
Balloon Payment), Assumed Monthly Payments (in the case of a
Balloon Loan
delinquent in respect of its Balloon Payment) and other amounts due
and owing,
or deemed to be due and owing, in respect of the predecessor Loan
as of the date
of the related REO Acquisition, shall be deemed to continue to be
due and owing
in respect of an REO Loan. In addition, Nonrecoverable Advances
(including
interest on such Nonrecoverable Advances) and Workout-Delayed
Reimbursement
Amounts with respect to such REO Loan that were reimbursed from
collections on
the Loans and resulted in principal distributed to the
Certificateholders being
reduced as a result of the first proviso of the definition of
"Principal
Distribution Amount", shall be deemed outstanding until recovered
or until a
Final Recovery Determination is made. All amounts payable or
reimbursable to the
Master Servicer, the Special Servicer and/or the Trustee in respect
of the
related Loan as of the date of the related REO Acquisition,
including, without
limitation, any unpaid Servicing Fees and any unreimbursed
Advances, together
with any Advance Interest accrued and payable to the Master
Servicer, the
Special Servicer and/or the Trustee in respect of such Advances,
shall continue
to be payable or reimbursable to the Master Servicer, the Special
Servicer
and/or the Trustee as the case may be, in respect of an REO Loan.
If the Loans
comprising the Eastridge Mall A/B Loan become REO Loans, amounts
received by the
Trust with respect to such REO Loans shall be applied to amounts
due and owing
in respect of such REO Loans as provided in Section 4 of the
Eastridge Mall
Intercreditor Agreement. If the Loans comprising the Camp Group
Portfolio A/B
Loan become REO Loans, amounts received by the Trust with respect
to such REO
Loans shall be applied to amounts due and owing in respect of such
REO Loans as
provided in Section 4 of the Camp Group Portfolio Intercreditor
Agreement. If
the Loans comprising the Seville Plaza A/B Loan become REO Loans,
amounts
received by the Trust with respect to such REO Loans shall be
applied to amounts
due and owing in respect of such REO Loans as provided in Section 4
of the
Seville Plaza Intercreditor Agreement. Collections in respect of
each REO Loan
(exclusive of the amounts to be applied to the payment of, or to be
reimbursed
to the Master Servicer or the Special Servicer for the payment of,
Servicing
Fees, Special Servicing Fees, Additional Master Servicing
Compensation,
Additional Special Servicing Compensation, Liquidation Fees, the
costs of
operating, managing, selling, leasing and maintaining the related
REO Property)
shall be treated: first, as a recovery of Nonrecoverable Advances
(including
interest on such Nonrecoverable Advance) and Workout-Delayed
Reimbursed Amounts
with respect to such REO Loan, that were reimbursed from
collections on the
Loans and resulted in principal distributed to the
Certificateholders being
reduced as a result of the first proviso of the definition of
"Principal
Distribution Amount"; second, as a recovery of accrued and unpaid
interest on
such REO Loan at the related Mortgage Rate in effect from time to
time to but
not including the Due Date in the Collection Period of receipt;
third, as a
recovery of principal of such REO Loan to the extent of its entire
unpaid
principal balance; fourth, in accordance with the Servicing
Standard of the
Master Servicer or the Special Servicer, as applicable, as a
recovery of any
other amounts due and owing in respect of such REO Loan; fifth, as
a recovery of
any other amounts deemed to be due and owing in respect of the
related REO Loan
(other than, in the case of an REO Loan that relates to an ARD Loan
after its
Anticipated Repayment Date, accrued and unpaid Excess Interest);
and sixth, in
the case of an REO Loan that relates to an ARD Loan after its
Anticipated
Repayment Date, as a recovery of any accrued and unpaid Excess
Interest on such
REO Loan to but not including the date of receipt by or on behalf
of the Trust,
in that order.
"Replacement Mortgage Loan" Any mortgage loan that is substituted
by
the related Mortgage Loan Seller for a Defective Mortgage Loan as
contemplated
by Section 2.03.
"Reportable Event": As defined in Section 11.07.
"Reporting Servicer": As defined in Section 11.10.
"Request for Release": A request for release signed by a
Servicing
Officer of, as applicable, the Master Servicer or Special Servicer
in the form
of Exhibit D attached hereto.
"Request for Review": A request for review signed by a
Servicing
Officer of, as applicable, the Master Servicer or Special Servicer
in the form
of Exhibit H attached hereto.
"Required Appraisal Loan": As defined in Section 3.19(b).
"Required Claims-Paying Ratings": With respect to any insurance
carrier, claims-paying ability ratings at least equal to the
following minimum
ratings assigned to such carrier by at least one of the other
following parties
and, in any event, by each Rating Agency that assigned a rating to
the
claims-paying ability of such insurance carrier: Moody's ("A2" or
better), S&P
("A" or better) and A.M. Best ("A: VIII" or better) or any
insurance carrier
backed or guaranteed by an insurer with such required ratings;
provided,
however, that a rating by A.M. Best shall be disregarded and shall
not be
applicable as one of the two required ratings except with respect
to a fidelity
bond or errors and omissions insurance maintained by a Sub-Servicer
and then
only to the extent in force as of the Closing Date. Notwithstanding
the
preceding sentence, an insurance carrier with lower or fewer
claims-paying
ability ratings shall be deemed to have the "Required Claims-Paying
Ratings" if
the applicable Rating Agency has confirmed in writing that such
insurance
carrier shall not result, in and of itself, in a downgrading,
withdrawal or
qualification (if applicable) of the then current rating assigned
by such Rating
Agency to any Class of Certificates unless, with respect to
policies maintained
by borrowers, a higher claims-paying ability rating is required
under any of the
loan documents.
"Reserve Account": The account or accounts created and
maintained
pursuant to Section 3.03(d).
"Reserve Funds": With respect to any Loan, any amounts delivered
by
the related Mortgagor (and not previously disbursed) to be held in
escrow by or
on behalf of the mortgagee representing reserves for principal and
interest
payments, repairs, replacements, capital improvements (including,
without
limitation, tenant improvements and leasing commissions), and/or
environmental
testing and remediation with respect to the related Mortgaged
Property.
"Residual Certificate": Any Class R-I or Class R-II
Certificate.
"Resolution Extension Period": This term shall mean:
(i) for purposes of remediating a Material Breach with respect
to any Mortgage Loan, the 90-day period following the end of
the
applicable Initial Resolution Period;
(ii) for purposes of remediating a Material Document Defect
with respect to any Mortgage Loan that is not a Specially
Serviced
Loan at the commencement of, and does not become a Specially
Serviced Loan during, the applicable Initial Resolution Period,
the
period commencing at the end of the applicable Initial
Resolution
Period and ending on, and including, the earlier of (i) the 90th
day
following the end of such Initial Resolution Period and (ii)
the
45th day following receipt by the related Mortgage Loan Seller
of
written notice from the Master Servicer or the Special Servicer
of
the occurrence of any Servicing Transfer Event with respect to
such
Mortgage Loan subsequent to the end of such Initial Resolution
Period;
(iii) for purposes of remediating a Material Document Defect
with respect to any Mortgage Loan that is a not a Specially
Serviced
Loan as of the commencement of the applicable Initial
Resolution
Period, but as to which a Servicing Transfer Event occurs
during
such
Initial Resolution Period, the period commencing at the end of
the applicable Initial Resolution Period and ending on, and
including, the 90th day following receipt by the related
Mortgage
Loan Seller of written notice from the Master Servicer or the
Special Servicer of the occurrence of such Servicing Transfer
Event;
and
(iv) for purposes of remediating a Material Document Defect
with respect to any Mortgage Loan that is a Specially Serviced
Loan
as of the commencement of the applicable Initial Resolution
Period,
zero days; provided, however, that if the related Mortgage Loan
Seller did not receive written notice from the Master Servicer
or
the Special Servicer of the relevant Servicing Transfer Event as
of
the commencement of the applicable Initial Resolution Period,
then
such Servicing Transfer Event shall be deemed to have occurred
during such Initial Resolution Period and the immediately
preceding
clause (iii) of this definition will be deemed to apply.
In addition, the related Mortgage Loan Seller shall have an
additional 90 days to cure such Material Document Defect or
Material Breach,
provided that such Mortgage Loan Seller has commenced and is
diligently
proceeding with the cure of such Material Document Defect or
Material Breach and
such failure to cure is solely the result of a delay in the return
of documents
from the local filing or recording authorities.
"Responsible Officer": When used with respect to the Trustee,
any
officer assigned to the Global Securities and Trust Services Group,
any vice
president, any assistant vice president, any assistant secretary,
any assistant
treasurer, or any other officer of the Trustee customarily
performing functions
similar to those performed by any of the above designated officers
to whom a
particular matter is referred by the Trustee because of such
officer's knowledge
of and familiarity with the particular subject. When used with
respect to any
Certificate Registrar (other than the Trustee), any officer or
assistant officer
thereof.
"Restricted Period": The 40-day period prescribed by Regulation
S
commencing on the later of (a) the date upon which the Certificates
are first
offered to persons other than the managers and any other
distributor (as defined
in Regulation S) of the Certificates, and (b) the Closing Date.
"Rule 144A": Rule 144A under the Securities Act.
"S&P": Standard & Poor's Ratings Services, a division of
The McGraw
Hill Companies, Inc., or its successor in interest. If neither
S&P nor any
successor remains in existence, "S&P" shall be deemed to refer
to such other
nationally recognized statistical rating agency or other comparable
Person
designated by the Depositor, notice of which designation shall be
given to the
Trustee, the Master Servicer, the Special Servicer and the REMIC
Administrator
and specific ratings of Standard & Poor's Ratings Services, a
division of The
McGraw Hill Companies, Inc. herein referenced shall be deemed to
refer to the
equivalent ratings of the party so designated.
"Sarbanes-Oxley Act": The Sarbanes-Oxley Act of 2002 and the
rules
and regulations of the Commission promulgated thereunder (including
any
interpretations thereof by the Commission's staff).
"Sarbanes-Oxley Certification": As defined in Section 11.05(a).
"Securities Act": The Securities Act of 1933, as amended, and
the
rules and regulations thereunder.
"Security Agreement": With respect to any Loan, any security
agreement, chattel mortgage or similar document or instrument,
whether contained
in the related Mortgage or executed separately, creating in favor
of the holder
of such Mortgage a security interest in the personal property
constituting
security for repayment of such Loan.
"Senior Certificate": Any Class A-1, Class A-2, Class A-3,
Class
A-AB, Class A-4, Class A-1A, Class XC or Class XP Certificate.
"Senior Principal Distribution Cross Over Date": The first
Distribution Date as of which the aggregate Class Principal Balance
of the Class
A-1, Class A-2, Class A-3, Class A-AB, Class A-4 and Class A-1A
Certificates
outstanding immediately prior to such Distribution Date exceeds the
sum of (a)
the aggregate Stated Principal Balance of the Mortgage Pool that
will be
outstanding immediately following such Distribution Date, plus (b)
the lesser of
(i) the Principal Distribution Amount for such Distribution Date
and (ii) the
portion of the Available Distribution Amount for such Distribution
Date that
will remain after the distributions of interest to be made on the
Class A-1,
Class A-2, Class A-3, Class A-AB, Class A-4 and Class A-1A
Certificates on such
Distribution Date have been so made.
"Sequential Pay Certificate": Any Class A, Class B, Class C,
Class
D, Class E, Class F, Class G, Class H, Class J, Class K, Class L,
Class M, Class
N, Class O or Class P Certificate.
"Servicer Reports": Each of the (i) CMSA Delinquent Loan Status
Report, (ii) CMSA REO Status Report, (iii) CMSA Historical Loan
Modification and
Corrected Mortgage Loan Report, (iv) CMSA Comparative Financial
Status Report,
(v) CMSA Servicer Watch List Report, (vi) CMSA NOI Adjustment
Worksheet, (vii)
CMSA Operating Statement Analysis Report, (viii) CMSA Loan Level
Reserve-LOC
Report, (ix) CMSA Loan Periodic Update File, (x) CMSA Property
File, (xi) CMSA
Financial File and (xii) CMSA Advance Recovery Report.
"Service(s)(ing)": In accordance with Regulation AB, the act of
servicing and administering the Mortgage Loans or any other assets
of the Trust
by an entity that meets the definition of "servicer" set forth in
Item 1101 of
Regulation AB and is referenced in the disclosure requirements set
forth in Item
1108 of Regulation AB. For the avoidance of doubt, any
uncapitalized occurrence
of this term shall have the meaning commonly understood by
participants in the
commercial mortgage-backed securities market.
"Servicing Account": The account or accounts created and
maintained
pursuant to Section 3.03(a).
"Servicing Advances": Subject to Section 3.19(d) and with respect
to
any Loan, all customary, reasonable and necessary "out-of-pocket"
costs and
expenses incurred or to be incurred, as the context requires, by
the Master
Servicer or, with respect to the Specially Serviced Loans, by the
Master
Servicer at the direction of the Special Servicer or by the Special
Servicer
(or, if applicable, the Trustee) in connection with the servicing
of a Loan
after a default, delinquency or other unanticipated event, or in
connection with
the administration of any REO Property, including, but not limited
to, the cost
of (a) compliance with the obligations of the Master Servicer set
forth in
Sections 3.03(c) and 3.09, (b) the preservation, insurance,
restoration,
protection and management of a Mortgaged Property, (c) obtaining
any Liquidation
Proceeds or Insurance Proceeds in respect of any Loan or REO
Property, (d) any
enforcement or judicial proceedings with respect to a Mortgaged
Property,
including, without limitation, foreclosures, and (e) the operation,
management,
maintenance and liquidation of any REO Property; provided that
notwithstanding
anything herein to the contrary, "Servicing Advances" shall not
include
allocable overhead of the Master Servicer or the Special Servicer
(or the
Trustee, if applicable), such as costs for office space, office
equipment,
supplies and related expenses, employee salaries and related
expenses and
similar internal costs and expenses, or costs incurred by either
such party in
connection with its purchase of any Loan or REO Property pursuant
to any
provision of this Agreement. All Emergency Advances made by the
Master Servicer
at the direction of the Special Servicer hereunder shall be
considered
"Servicing Advances" for the purposes hereof.
"Servicing Criteria": The criteria set forth in paragraph (d)
of
Item 1122 of Regulation AB as such may be amended from time to
time.
"Servicing Fees": With respect to each Loan and REO Loan, the
Master
Servicing Fee and the Special Servicing Fee.
"Servicing File": Any documents (other than documents required to
be
part of the related Mortgage File), including, without limitation,
the related
Phase I Environmental Site Assessment and any related environmental
insurance or
endorsement, in the possession of the Master Servicer or the
Special Servicer
and relating to the origination and servicing of any Mortgage Loan
or the
administration of any REO Property.
"Servicing Function Participant": Any Additional Servicer,
Sub-Servicer, Subcontractor or any other Person, other than the
Master Servicer,
the Special Servicer and the Trustee, that is performing activities
that address
the Servicing Criteria, unless such Person's activities relate only
to 5% or
less of the Mortgage Loans (by Stated Principal Balance).
"Servicing Officer": Any officer or authorized signatory of the
Master Servicer or the Special Servicer or any Additional Servicer
involved in,
or responsible for, the administration and servicing of Loans,
whose name and
specimen signature appear on a list of such officers and authorized
signatories
furnished by such party to the Trustee and the Depositor on the
Closing Date, as
such list may be amended from time to time thereafter.
"Servicing Released Bid": As defined in Section 7.01(d).
"Servicing Retained Bid": As defined in Section 7.01(d).
"Servicing Return Date": With respect to any Corrected Loan,
the
date that servicing thereof is returned by the Special Servicer to
the Master
Servicer pursuant to Section 3.21(a).
"Servicing Standard": With respect to each of the Master
Servicer
and the Special Servicer subject to applicable law and the express
terms of the
relevant Loans and in the case of an A/B Loan, the related
Intercreditor
Agreement, to service and administer the Loans and any REO
Properties for which
such Person is responsible hereunder: (a) with the same care,
skill, prudence
and diligence as is normal and usual in its general mortgage
servicing and REO
property management activities on behalf of third parties or on
behalf of
itself, whichever is higher, with respect to mortgage loans and REO
properties
that are comparable to those for which it is responsible hereunder;
(b) with a
view to the timely collection of all scheduled payments of
principal and
interest under the Loans, the full collection of all Prepayment
Premiums that
may become payable under the Loans and, in the case of the Special
Servicer, if
a Loan comes into and continues in default and if, in the good
faith and
reasonable judgment of the Special Servicer, no satisfactory
arrangements can be
made for the collection of the delinquent payments (including
payments of
Prepayment Premiums), the maximization of the recovery on such Loan
to the
Certificateholders, and, in the case of an A/B Loan, on behalf of
the related
Note B Holder, as a collective whole, on a net present value basis;
and (c)
without regard to: (i) any known relationship that the Master
Servicer (or any
Affiliate thereof) or the Special Servicer (or any Affiliate
thereof), as the
case may be, may have with the related Mortgagor or with any other
party to this
Agreement; (ii) the ownership of any Certificate or Note B or any
interest in
any mezzanine loan by the Master Servicer (or any Affiliate
thereof) or the
Special Servicer (or any Affiliate thereof), as the case may be;
(iii) the
obligation of the Master Servicer to make Advances, (iv) the
obligation of the
Special Servicer to make, or direct the Master Servicer to make,
Servicing
Advances; (v) the right of the Master Servicer (or any Affiliate
thereof) or the
Special Servicer (or any Affiliate thereof), as the case may be, to
receive
reimbursement of costs, or the sufficiency of any compensation
payable to it,
hereunder or with respect to any particular transaction; or (vi)
any ownership,
servicing and/or management by the Master Servicer (or any
Affiliate thereof) or
the Special Servicer (or any Affiliate thereof), as the case may
be, of any
other mortgage loans or real property.
"Servicing Transfer Event" shall mean, with respect to any Loan,
any
of the following events:
(a) the related Mortgagor has failed to make when due any
Monthly
Payment
(including a Balloon Payment) or any other payment required
under
the
related loan documents, which failure continues, or the Master
Servicer
determines, in its reasonable, good faith judgment, will
continue,
unremedied (i) except in the case of a delinquent Balloon
Payment,
for 60 days beyond the date on which the subject payment was
due,
and (ii)
solely in the case of a delinquent Balloon Payment and if (x)
the
related
Borrower is actively seeking a refinancing commitment, (y) the
related
Borrower continues to make payments in the amount of its
Monthly
Payment,
and (z) subject to Section 3.21(f), the Directing
Certificateholder consents, for 60 days beyond the related maturity
date
or, if the
related Mortgagor has delivered to the Master Servicer, on or
before the
60th day after the related maturity date, a refinancing
commitment
reasonably acceptable to the Master Servicer, for such longer
period,
not to exceed 120 days beyond the related maturity date, during
which the
refinancing would occur; provided, with respect to the Puerto
Rico Self
Storage Mortgage Loan and after the enactment of Puerto Rico
tax
legislation that would trigger a Puerto Rico Self Storage
Gross-Up
Payment,
if with respect to any Due Date on such Mortgage Loan, the
Mortgagor
fails to make any Puerto Rico Self Storage Gross-Up Payment
that
is
required to be made under the loan agreement for such Mortgage
Loan,
but the
related Mortgage Loan Seller elects to remit to the Trust such
Puerto
Rico Self Storage Gross-Up Payment pursuant to Section 3.31(a)
within 60
days after such Puerto Rico Self Storage Gross-Up Payment is
due, no
Servicing Transfer Event shall occur solely as a result of the
Mortgagor
failing to make such Puerto Rico Self Storage Gross-Up Payment
on such
Due Date, so long as the related Mortgage Loan Seller remits
such
Puerto
Rico Self Storage Gross-Up Payment to the Trust within 60 days
after such
Puerto Rico Self Storage Gross-Up Payment is due; or
(b) the Master Servicer (or the Special Servicer with the consent
of
the
Directing Certificateholder) has determined, in its reasonable,
good
faith
judgment, that a default in the making of a Monthly Payment
(including
a Balloon Payment) or any other material payment required under
the
related loan documents is likely to occur within 30 days and
either
(i) the
related Mortgagor has requested a material modification of the
payment
terms of the Loan or (ii) such default is likely to remain
unremedied
for at least the period contemplated by clause (a) of this
definition; or
(c) the Master Servicer (or the Special Servicer with the consent
of
the
Directing Certificateholder) has determined, in its reasonable,
good
faith
judgment, that a default, other than as described in clause (a)
or
(b) of
this definition, has occurred or is imminent that may
materially
impair the
value of the related Mortgaged Property as security for the
Loan,
which default has continued or is reasonably expected to
continue
unremedied
for the applicable cure period under the terms of the Loan (or,
if no cure
period is specified, for 60 days); or
(d) a decree or order of a court or agency or supervisory
authority
having
jurisdiction in the premises in an involuntary action against
the
related
Mortgagor under any present or future U.S. federal or state
bankruptcy, insolvency or similar law (including any similar law of
the
Commonwealth of Puerto Rico) or the appointment of a conservator,
receiver
or
liquidator in any insolvency, readjustment of debt, marshalling
of
assets and
liabilities or similar proceeding, or for the winding-up or
liquidation of
its affairs, shall have been entered against the related
Mortgagor;
or
(e) the related Mortgagor shall have consented to the appointment
of
a
conservator, receiver or liquidator in any insolvency, readjustment
of
debt,
marshalling of assets and liabilities or similar proceeding of
or
relating
to such Mortgagor or of or relating to all or substantially all
of its
property; or
(f) the related Mortgagor shall have admitted in writing its
inability
to pay its debts generally as they become due, filed a petition
to take
advantage of any applicable insolvency or reorganization
statute,
made an
assignment for the benefit of its creditors, or voluntarily
suspended
payment of its obligations; or
(g) the Master Servicer shall have received notice of the
commencement of foreclosure or similar proceedings with respect to
the
related
Mortgaged Property.
Notwithstanding the foregoing, with respect to any A/B Loan,
the
related Mortgage Loan and each related Note B shall be deemed to be
a Specially
Serviced Loan if any loan within the A/B Loan becomes a Specially
Serviced Loan.
A Servicing Transfer Event with respect to any Loan shall cease
to
exist:
(w) in the case of the circumstances described in clause (a) of
this
definition, if and when the related Mortgagor has made three
consecutive
full and
timely Monthly Payments under the terms of such Loan (as such
terms may
be changed or modified in connection with a bankruptcy or
similar
proceeding involving the related Mortgagor or by reason of a
modification, waiver or amendment granted or agreed to by the
Master
Servicer
or the Special Servicer pursuant to Section 3.20);
(x) in the case of the circumstances described in clauses (b),
(d),
(e) and
(f) of this definition, if and when such circumstances cease to
exist in
the reasonable, good faith judgment of the Special Servicer;
(y) in the case of the circumstances described in clause (c) of
this
definition, if and when such default is cured in the reasonable,
good
faith
judgment of the Special Servicer; and
(z) in the case of the circumstances described in clause (g) v,
if
and when
such proceedings are terminated;
so long as at that time no circumstance identified in clauses (a)
through (g) of
this definition exists that would cause the Loan to continue to be
characterized
as a Specially Serviced Loan and provided no additional default is
foreseeable
in the reasonable good faith judgment of the Special Servicer.
"Seville Plaza A/B Loan": The Seville Plaza Note A Mortgage
Loan
together with the Seville Plaza Note B. References herein to the
Seville Plaza
A/B Loan shall be construed to refer to the aggregate indebtedness
under the
Seville Plaza Note A and the Seville Plaza Note B.
"Seville Plaza Control Appraisal Period": The meaning assigned
to
"Control Appraisal Period" in the Seville Plaza Intercreditor
Agreement.
"Seville Plaza Controlling Holder": The meaning assigned to
"Controlling Holder" in the Seville Plaza Intercreditor Agreement.
The initial
Seville Plaza Controlling Holder shall be set forth on Schedule VII
hereto.
"Seville Plaza Intercreditor Agreement": The Agreement Among
Note
Holders dated as of October 1, 2006 by and between the Seville
Plaza Note A
Holder and the Seville Plaza Note B Holder relating to the relative
rights of
such holders, as the same may be further amended from time to time
in accordance
with the terms thereof.
"Seville Plaza Mortgaged Property": The property that secures
the
Seville Plaza A/B Loan.
"Seville Plaza Note A": With respect to the Seville Plaza Note
A
Mortgage Loan, the related Mortgage Note that is included in the
Trust Fund.
"Seville Plaza Note A Holder": The holder of the Seville Plaza
Note
B, initially Bank of America, National Association.
"Seville Plaza Note A Mortgage Loan": The Mortgage Loan
identified
as Loan No. 3402523 in the Mortgage Loan Schedule, which, together
with the
Seville Plaza Note A, is secured by a Mortgage on the Seville Plaza
Mortgaged
Property.
"Seville Plaza Note B": The Mortgage Note related to the
Seville
Plaza A/B Loan that is not included in the Trust, which is
subordinated in right
of payment to the Seville Plaza Note A to the extent set forth in
the Seville
Plaza Intercreditor Agreement.
"Seville Plaza Note B Holder": The holder of the Seville Plaza
Note
B, initially Bank of America, National Association.
"Seville Plaza Noteholders": The holder of the Mortgage Note for
the
Seville Plaza Note A Mortgage Loan and the Seville Plaza Note B
Holder.
"Similar Law": As defined in Section 5.02(c).
"Single-Purpose-Entity": A Person, other than an individual,
whose
organizational documents provide that it is formed solely for the
purpose of
owning the related Mortgaged Property, Mortgaged Properties
securing other Loans
and assets incidental to the ownership and operation of such
Mortgaged Property
or Properties, and that has agreed, either in such organizational
documents or
the loan documents relating to any related Loan, that it (a) does
not engage in
any business unrelated to such property and the financing thereof;
(b) does not
have any indebtedness other than as permitted by the related
Mortgage, (c)
maintains its own books, records and accounts, in each case that
are separate
and apart from the books, records and accounts of any other Person;
(d) conducts
business in its own name; (e) does not guarantee or assume the
debts or
obligations of any other person; (f) does not commingle its assets
or funds with
those of any other Person; (g) transacts business with affiliates
on an arm's
length basis; and (h) holds itself out as being a legal entity
separate and
apart from any other Person. In addition, such entity's
organizational documents
provide that any dissolution and winding up or insolvency filing
for such entity
requires either the unanimous consent of all partners or members,
as applicable,
or the consent of an independent Person (whether as a partner,
member, or
director in such entity or in any Person that is the managing
member or general
partner of such entity or otherwise), and either such
organizational documents
or the terms of the loan documents provide that such organizational
documents
may not be amended without the consent of the lender as regards
such single
purpose entity requirements.
"Single Certificate": For purposes of Section 4.02(a), a
Certificate
of any Class of REMIC II Regular Certificates evidencing a $1,000
denomination
or, in the case of a Class X Certificate, a 100% Percentage
Interest.
"Sole Pooled Certificateholder": Any Holder (or Holders
provided
they act in unanimity) holding 100% of the Class X and
Non-Investment Grade
Sequential Pay Certificates or an assignment of the voting rights
thereof;
provided that the Class Principal Balances, as applicable, of the
Investment
Grade Sequential Pay Certificates have been reduced to zero.
"Special Action": As defined in Section 3.21(e).
"Special Servicer": Midland Loan Services, Inc., its successors
in
interest, or any successor special servicer appointed as herein
provided.
"Special Servicing Fee": With respect to each Specially
Serviced
Loan and each REO Loan, the fee designated as such and payable to
the Special
Servicer pursuant to the first paragraph of Section 3.11(c).
"Special Servicing Fee Rate": With respect to each Specially
Serviced Loan and each REO Loan, 0.25% (25 basis points) per
annum.
"Specially Serviced Loan": Any Loan as to which there then exists
a
Servicing Transfer Event. Upon the occurrence of a Servicing
Transfer Event with
respect to any Loan, such Loan shall remain a Specially Serviced
Loan until the
earliest of (i) its removal from the Trust Fund (in the case of a
Mortgage
Loan), (ii) an REO Acquisition with respect to the related
Mortgaged Property,
and (iii) the cessation of all existing Servicing Transfer Events
with respect
to such Loan.
"Startup Day": With respect to each of REMIC I and REMIC II, the
day
designated as such in Section 10.01(c).
"Stated Maturity Date": With respect to any Loan, the Due Date
on
which the last payment of principal is due and payable under the
terms of the
related Mortgage Note as in effect on the Closing Date, without
regard to any
change in or modification of such terms in connection with a
bankruptcy or
similar proceeding involving the related Mortgagor or a
modification, waiver or
amendment of such Loan granted or agreed to by the Master Servicer
or Special
Servicer pursuant to Section 3.20 and, in the case of an ARD Loan,
without
regard to its Anticipated Repayment Date.
"Stated Principal Balance": With respect to any Mortgage Loan
and
any successor REO Loan, a principal amount initially equal to the
Cut-off Date
Balance of such Mortgage Loan, that is permanently reduced on each
Distribution
Date (to not less than zero) by (i) all payments (or P&I
Advances in lieu
thereof) of, and all other collections allocated as provided in
Section 1.03 to,
principal of or with respect to such Mortgage Loan (or successor
REO Loan) that
are (or, if they had not been applied to cover any Additional Trust
Fund
Expense, would have been) distributed to Certificateholders on such
Distribution
Date, and (ii) the principal portion of any Realized Loss incurred
in respect of
such Mortgage Loan (or successor REO Loan) during the related
Collection Period.
With respect to any Note B (and any successor REO Loan), a
principal amount
initially equal to the Cut-off Date Balance of such Note B, that is
permanently
reduced (to not less than zero) by (i) all payments (or P&I
Advances in lieu
thereof) of, and all other collections allocated as provided in
Section 1.03 to,
principal of or with respect to such Note B (or successor REO Loan)
that are
(or, if they had not been applied to cover any Additional Trust
Fund Expense,
would have been) distributed to the related Note B Holder, and (ii)
the
principal portion of any Realized Loss incurred in respect of such
Note B (or
successor REO Loan) during the related Collection Period.
Notwithstanding the
foregoing, if a Liquidation Event occurs in respect of any Loan or
REO Property,
then the "Stated Principal Balance" of such Loan or of the related
REO Loan, as
the case may be, shall be zero commencing as of the Distribution
Date in the
Collection Period next following the Collection Period in which
such Liquidation
Event occurred. In addition, to the extent that principal from
general
collections is used to reimburse Nonrecoverable Advances or
Work-out Delayed
Reimbursement Amounts, and such amount has reduced the Principal
Distribution
Amount, such amount shall not reduce the Stated Principal Balance
prior to a
Liquidation Event or other liquidation or disposition of the
related Mortgage
Loan or REO Property (other than for purposes of computing the
Weighted Average
Adjusted Net Mortgage Rate). With respect to an A/B Loan, the
Stated Principal
Balance shall be the sum of the Stated Principal Balance of the
related Mortgage
Loan and the Stated Principal Balance of the related Note B.
"Sub-Servicer": Any Person with which the Master Servicer or
the
Special Servicer has entered into a Sub-Servicing Agreement.
"Sub-Servicing Agreement": The written contract between the
Master
Servicer or the Special Servicer, on the one hand, and any
Sub-Servicer, on the
other hand as provided in Section 3.22, as the same may be modified
or amended.
"Subcontractor": Any vendor, subcontractor or other Person that
is
not responsible for the overall servicing (as "servicing" is
commonly understood
by participants in the mortgage-backed securities market) of
Mortgage Loans but
performs one or more discrete functions identified in Item 1122(d)
of Regulation
AB with respect to Mortgage Loans under the direction or authority
of the Master
Servicer, the Special Servicer, the Trustee, any Additional
Servicer or any
Sub-Servicer.
"Subordinate Certificate": Any Class A-M, Class A-J, Class B,
Class
C, Class D, Class E, Class F, Class G, Class H, Class J, Class K,
Class L, Class
M, Class N, Class O, Class P Certificate or a Residual
Certificate.
"Substitution Shortfall Amount": An amount equal to the excess
if
any of the difference between the Purchase Price of the Deleted
Mortgage Loan
calculated as of the date of substitution and the Stated Principal
Balance of
such Qualifying Substitute Mortgage Loan as of the date of
substitution.
"Successful Bidder": As defined in Section 7.01(d).
"SunTrust Bank":
SunTrust Bank, and its successors in interest.
"Tax Matters Person": With respect to each of REMIC I and REMIC
II,
the Person designated as the "tax matters person" of such REMIC in
the manner
provided under Treasury Regulations Section 1.860F-4(d) and
Treasury Regulations
Section 301.6231(a)(7)-1. The "Tax Matters Person" for each of
REMIC I and REMIC
II is the Holder of Certificates evidencing the largest Percentage
Interest in
the related Class of Residual Certificates.
"Tax Returns": The federal income tax returns on IRS Form 1066,
U.S.
Real Estate Mortgage Investment Conduit (REMIC) Income Tax Return,
including
Schedule Q thereto, Quarterly Notice to Residual Interest Holders
of REMIC
Taxable Income or Net Loss Allocation, or any successor forms, to
be filed on
behalf of each of REMIC I and REMIC II due to its classification as
a REMIC
under the REMIC Provisions and the tax returns due with respect to
the Grantor
Trust, together with any and all other information, reports or
returns that may
be required to be furnished to the Certificateholders or filed with
the IRS or
any other governmental taxing authority under any applicable
provisions of
federal or Applicable State Law.
"Transfer": Any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership
Interest in a
Certificate.
"Transfer Affidavit and Agreement": As defined in Section
5.02(d)(i)(B).
"Transferee": Any Person who is acquiring by Transfer any
Ownership
Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer any
Ownership
Interest in a Certificate.
"Trust": The common law trust created hereby.
"Trust Fund": Collectively, all of the assets of REMIC I, REMIC
II,
the Grantor Trust and the Loss of Value Reserve Fund.
"Trustee": LaSalle Bank National Association, in its capacity
as
Trustee hereunder, its successor in interest, or any successor
trustee appointed
as herein provided.
"Trustee Fee": The fee payable to the Trustee on each
Distribution
Date for its services as Trustee hereunder, in an aggregate amount
equal to one
month's interest at the Trustee Fee Rate in respect of each
Mortgage Loan and
related REO Loan, calculated on the Stated Principal Balance as of
the Due Date
in the immediately preceding Collection Period and for the same
number of days
(i.e., on the basis of, as applicable, a 360-day year consisting of
twelve
30-day months or the actual number of days elapsed during each
calendar month in
a 360-day year) respecting which any related interest payment due
on such Loan
or deemed to be due on such related REO Loan is computed under the
terms of the
related Mortgage Note (as such terms may be changed or modified at
any time
following the Closing Date) and applicable law, and without giving
effect to any
Excess Interest that may accrue on any ARD Loan after its
Anticipated Repayment
Date.
"Trustee Fee Rate": A rate of 0.00097% per annum.
"Trustee Reports": Each of the CMSA Bond Level File and the
CMSA
Collateral Summary File.
"Trustee's Website": The website maintained by the Trustee and
initially located at "www.etrustee.net", or at such other address
as the Trustee
may designate from time to time.
"UCC": The Uniform Commercial Code in effect in the applicable
jurisdiction.
"UCC Financing Statement": A financing statement executed (if
required by the UCC) and filed pursuant to the Uniform Commercial
Code, as in
effect in the relevant jurisdiction.
"UCC-1", "UCC-2" and "UCC-3": UCC Financing Statements on Form
UCC-1, Form UCC-2 and Form UCC-3, respectively.
"Uncertificated Accrued Interest": With respect to any REMIC I
Regular Interest, for any Distribution Date, one month's interest
at the REMIC I
Remittance Rate applicable to such REMIC I Regular Interest for
such
Distribution Date, accrued on the REMIC I Principal Balance of such
REMIC I
Regular Interest outstanding immediately prior to such Distribution
Date. The
Uncertificated Accrued Interest in respect of any REMIC I Regular
Interest for
any Distribution Date shall be deemed to have accrued during the
applicable
Interest Accrual Period.
"Uncertificated Distributable Interest": With respect to any REMIC
I
Regular Interest, for any Distribution Date, the Uncertificated
Accrued Interest
in respect of such REMIC I Regular Interest for such Distribution
Date, reduced
(to not less than zero) by the product of (i) the Net Aggregate
Prepayment
Interest Shortfall, if any, for such Distribution Date, multiplied
by (ii) a
fraction, the numerator of which is the Uncertificated Accrued
Interest in
respect of such REMIC I Regular Interest for such Distribution
Date, and the
denominator of which is the aggregate Uncertificated Accrued
Interest in respect
of all the REMIC I Regular Interests for such Distribution
Date.
"Underwriter": Each of Banc of America Securities LLC, Bear,
Stearns
& Co Inc., Barclays Capital Inc., SunTrust Capital Markets
Inc., Morgan Stanley
& Co. Incorporated and Greenwich Capital Markets, Inc.
"Underwriting Agreement: The underwriting agreement dated as of
September 28, 2006 among Bank of America, the Depositor and the
Underwriters.
"Unliquidated Advance": Any Advance previously made by a party
hereto that has been previously reimbursed, as between the Person
that made the
Advance hereunder, on the one hand, and the Trust Fund, on the
other, as part of
a Workout-Delayed Reimbursement Amount pursuant to subsections (ii)
and (vi) of
Section 3.05(a) but that has not been recovered from the Borrower
or otherwise
from collections on or the proceeds of the Loan or related REO
Property in
respect of which the Advance was made.
"U.S. Person": A citizen or resident of the United States, a
corporation or partnership (except to the extent provided in the
applicable
Treasury regulations) created or organized in, or under the laws
of, the United
States any State thereof or the District of Columbia, including an
entity
treated as a corporation or partnership for federal income tax
purposes, or an
estate whose income is subject to United States federal income tax
regardless of
its source, or a trust if a court within the United States is able
to exercise
primary supervision over the administration of the trust and one or
more such
U.S. Persons have the authority to control all substantial
decisions of the
trust (or, to the extent provided in applicable Treasury
regulations, certain
trusts in existence on August 20, 1996 that are eligible to elect
to be treated
as U.S. Persons).
"Voting Rights": The portion of the voting rights of all of the
Certificates that is allocated to any Certificate. At all times
during the term
of this Agreement, 98% of the Voting Rights shall be allocated
among the Holders
of the various outstanding Classes of Sequential Pay Certificates
in proportion
to the respective Class Principal Balances of their Certificates,
and 2% of the
Voting Rights shall be allocated to the Holders of the Class X
Certificates
(allocated, pro rata, between the Class XC and Class XP
Certificates based upon
their related Class Notional Amounts). None of the Class V, Class
R-I or Class
R-II Certificates will be entitled to any Voting Rights. Voting
Rights allocated
to a Class of Certificateholders shall be allocated among such
Certificateholders in proportion to the Percentage Interests
evidenced by their
respective Certificates.
"Weighted Average Adjusted Net Mortgage Rate": With respect to
any
Distribution Date, the weighted average of the respective Adjusted
Net Mortgage
Rates for all the Mortgage Loans and related REO Loans, weighted on
the basis of
the respective Stated Principal Balances of such Mortgage Loans and
REO Loans
outstanding immediately prior to such Distribution Date.
"Withheld Amounts": As defined in Section 4.05.
"Within Grace Period Loan": With respect to any Master Servicer
Remittance Date, any Loan having any Monthly Payment remaining
unpaid past its
Due Date, as of the close of business on the Determination Date in
the same
calendar month, but that is not delinquent past the applicable
grace period for
such Monthly Payment as of the close of business on such
Determination Date.
"Workout-Delayed Reimbursement Amount": With respect to any
Loan,
the amount of any Advance made with respect to such Loan on or
before the date
such Loan becomes (or, but for the making of three monthly payments
under its
modified terms, would then constitute) a Corrected Loan, together
with (to the
extent accrued and unpaid) interest on such Advances, to the extent
that (i)
such Advance is not reimbursed to the Person who made such Advance
on or before
the date, if any, on which such Loan becomes a Corrected Loan and
(ii) the
amount of such Advance becomes an obligation of the Mortgagor to
pay such amount
under the terms of the modified loan documents. That any amount
constitutes all
or a portion of any Workout-Delayed Reimbursement Amount shall not
in any manner
limit the right of any Person hereunder to determine that such
amount instead
constitutes a Nonrecoverable Advance reimbursable in the same
manner as any
other Nonrecoverable Advance.
"Workout Fee": With respect to each Corrected Loan, the fee
designated as such and payable to the Special Servicer pursuant to
the second
paragraph of Section 3.11(c).
"Workout Fee Rate": With respect to each Corrected Loan as to
which
a Workout Fee is payable, 1.0% (100 basis points).
Section 1.02 Rules of Construction; Other Definitional
Provisions.
Unless the context otherwise clearly requires:
(a) the definitions of terms herein shall apply equally to the
singular
and plural forms of the terms defined;
(b) whenever the context may require, any pronoun shall include
the
corresponding masculine, feminine and neuter forms;
(c) the words "include", "includes" and "including" shall be
deemed
to be
followed by the phrase "without limitation";
(d) the word "will" shall be construed to have the same meaning
and
effect as
the word "shall";
(e) any definition of or reference to any agreement, instrument
or
other
document herein shall be construed as referring to such
agreement,
instrument
or other document as from time to time amended, supplemented or
otherwise
modified (subject to any restrictions on such amendments,
supplements or modifications set forth herein);
(f) any reference to any Person, or to any Person in a
specified
capacity,
shall be construed to include such Person's successors and
assigns or
such Person's successors in such capacity, as the case may be;
(g) unless otherwise specified herein, "pro rata" when used in
reference
to more than one Class of the Certificates shall mean "pro
rata"
based on
the outstanding Class Principal Balances of such Classes of
Certificates;
(h) all references in this instrument to designated "Articles",
"Sections", "Subsections", "clauses" and other subdivisions are to
the
designated
Articles, Sections, Subsections, clauses and other subdivisions
of this
Agreement as originally executed; and
(i) the words "herein", "hereof", "hereunder" and other words
of
similar
import refer to this Agreement as a whole and not to any
particular
Article, Section, Subsection or other subdivision.
Section 1.03 Certain Calculations in Respect of the Mortgage
Pool.
(a) All amounts collected by or on behalf of the Trust in respect
of
any
Cross-Collateralized Set in the form of payments from
Mortgagors,
Insurance
Proceeds, Condemnation Proceeds and Liquidation Proceeds shall
be applied
among the Mortgage Loans constituting such Cross-Collateralized
Set in
accordance with the express provisions of the related loan
documents and,
in the absence of such express provisions, in accordance
with the
Servicing Standard. All amounts collected by or on behalf of
the
Trust in
respect of or allocable to any particular Mortgage Loan in the
form of
payments from Mortgagors, Insurance Proceeds, Condemnation
Proceeds
or Liquidation Proceeds shall be applied to amounts due and
owing
under the
related Mortgage Note and Mortgage (including for principal and
accrued
and unpaid interest) in accordance with the express provisions
of
the
related loan documents and, in the absence of such express
provisions
or if and
to the extent that such terms authorize the lender to use its
discretion, shall be applied: first, as a recovery of
Nonrecoverable
Advances
(including interest on such Nonrecoverable Advances) and
Workout-Delayed Reimbursement Amounts that were reimbursed from
general
collections on the Mortgage Loans and resulted in principal
distributed to
the
Certificateholders being reduced as a result of the first proviso
in
the
definition of "Principal Distribution Amount", and, if
applicable,
unpaid
related Liquidation Expenses and any outstanding related
Additional
Trust Fund
Expenses; second, as a recovery of accrued and unpaid interest
(excluding
Excess Interest, in the case of an ARD Loan after its
Anticipated Repayment Date) on such Mortgage Loan to, but not
including,
the date
of receipt by or on behalf of the Trust (or, in the case of a
full
Monthly Payment from any Mortgagor, through the related Due
Date);
third, as
a recovery of principal of such Mortgage Loan then due and
owing,
including by reason of acceleration of the Mortgage Loan
following
a default thereunder
(or, if a Liquidation Event has occurred in respect
of such
Mortgage Loan, as a recovery of principal to the extent of its
entire
remaining unpaid principal balance); fourth, unless a
Liquidation
Event has
occurred in respect of such Mortgage Loan, as a recovery of
amounts to
be currently applied to the payment of, or escrowed for the
future
payment of, real estate taxes, assessments, insurance premiums,
ground
rents (if applicable) and similar items; fifth, unless a
Liquidation Event has occurred in respect of such Mortgage Loan, as
a
recovery
of Reserve Funds to the extent then required to be held in
escrow;
sixth, as a recovery of any Prepayment Premium then due and
owing
under such
Mortgage Loan; seventh, as a recovery of any Default Charges
then due
and owing under such Mortgage Loan; eighth, as a recovery of
any
assumption
fees and modification fees then due and owing under such
Mortgage
Loan; ninth, as a recovery of any other amounts then due and
owing
under such Mortgage Loan other than remaining unpaid principal;
tenth, as
a recovery of any remaining principal of such Mortgage Loan to
the extent
of its entire remaining unpaid principal balance; and,
eleventh,
in the case of an ARD Loan after its Anticipated Repayment
Date,
as a
recovery of accrued and unpaid Excess Interest on such ARD Loan,
to
but not
including the date of receipt.
(b) Collections by or on behalf of the Trust in respect of each
REO
Property,
exclusive of amounts to be applied to the payment of the costs
of
operating, managing, maintaining and disposing of such REO
Property,
shall be
treated: first, as a recovery of Nonrecoverable Advances
(including
interest on such Nonrecoverable Advance) and Workout-Delayed
Reimbursed
Amounts with respect to such REO Loan, that were reimbursed
from
collections on the Mortgage Loans and resulted in principal
distributed to the Certificateholders being reduced as a result of
the
first
proviso of the definition of "Principal Distribution Amount";
second, as
a recovery of accrued and unpaid interest (excluding, in the
case of an
REO Loan that relates to an ARD Loan after its Anticipated
Repayment
Date, Excess Interest) on such REO Loan at the related Mortgage
Rate in
effect from time to time to but not including the Due Date in
the
Collection
Period of receipt; third, as a recovery of principal of such
REO Loan
to the extent of its entire unpaid principal balance; fourth,
in
accordance
with the Servicing Standard of the Master Servicer or the
Special
Servicer, as applicable, as a recovery of any other amounts due
and owing in
respect of such REO Loan; fifth, as a recovery of any other
amounts
deemed to be due and owing in respect of the related REO Loan
(other
than, in the case of an REO Loan that relates to an ARD Loan
after
its
Anticipated Repayment Date, accrued and unpaid Excess Interest);
and
sixth, in
the case of an REO Loan that relates to an ARD Loan after its
Anticipated Repayment Date, as a recovery of any accrued and unpaid
Excess
Interest
on such REO Loan to but not including the date of receipt by or
on behalf
of the Trust, in that order.
(c) For the purposes of calculating distributions pursuant to
this
Agreement,
Excess Interest on an ARD Loan shall be deemed not to
constitute
principal or any portion thereof and shall not be added to the
unpaid
principal balance or Stated Principal Balance of such ARD Loan.
To
the extent
any Excess Interest is not paid on a current basis, it shall be
deemed to
be deferred interest. Any reference to the Certificate
Principal
Balance of
any Class of Certificates on or as of a Distribution Date shall
refer to
the Certificate Balance of such Class of Certificates on such
Distribution Date after giving effect to any distributions made on
such
Distribution Date pursuant to Section 4.01(a).
(d) Insofar as amounts received in respect of any Mortgage Loan
or
related
REO Property and allocable to shared fees and shared charges
owing
in respect
of such Mortgage Loan or the related REO Loan, as the case may
be, that
constitute Additional Master Servicing Compensation payable to
the Master
Servicer and/or Additional Special Servicing Compensation
payable to
the Special Servicer, are insufficient to cover the full amount
of such
fees and charges, such amounts shall be allocated between such
of
those fees
and charges as are payable to the Master Servicer, on the one
hand, and
such of those fees and charges as are payable to the Special
Servicer,
on the other, pro rata in accordance with their respective
entitlements.
(e) Notwithstanding anything contained herein to the contrary,
with
respect to
each Mortgage Loan subject to an involuntary prepayment of
principal
during a Collection Period, all interest collected during such
Collection
Period in connection with such involuntary prepayment of
principal
that the related lender would be entitled to retain under the
related
loan documents shall be treated as excess interest and shall be
used to
offset any shortfalls of interest for the related Distribution
Date
resulting from involuntary prepayments of principal during such
Collection
Period prior to such shortfalls of interest being allocated to
any Class
of Certificates. Any such interest not required to offset
shortfalls
of interest for the related Distribution Date pursuant to the
immediately preceding sentence shall constitute Additional
Master
Servicing
Compensation.
(f) The foregoing applications of amounts received in respect of
any
Mortgage
Loan or REO Property shall be determined by the Master Servicer
and
reflected in the appropriate monthly report from the Master
Servicer
and in the
appropriate monthly Trustee Report as provided in Section 4.02.
If an expense under this Agreement relates in the reasonable
judgment of the Master Servicer, the Special Servicer or the
Trustee, as
applicable, primarily to the administration of the Trust Fund, any
REMIC formed
hereunder or to any determination respecting the amount, payment or
avoidance of
any tax under the REMIC Provisions or the actual payment of any
REMIC tax or
expense, or this Agreement states that any expense is solely "an
expense of the
Trust Fund" or words of similar import, then such expense shall not
be allocated
to, deducted or reimbursed from, or otherwise charged against any
Note B Holder
and such Note B Holder shall not suffer any adverse consequences as
a result of
the payment of such expense.
Section 1.04 Cross-Collateralized Mortgage Loans.
Notwithstanding anything herein to the contrary, it is hereby
acknowledged that the sets of Mortgage Loans identified on the
Mortgage Loan
Schedule as being cross-collateralized with each other are, in the
case of each
such particular set of Mortgage Loans, by their terms,
cross-defaulted and
cross-collateralized with each other. For purposes of reference
only in this
Agreement, and without in any way limiting the servicing rights and
powers of
the Master Servicer and/or the Special Servicer, with respect to
any
Cross-Collateralized Mortgage Loan (or successor REO Loan), the
Mortgaged
Property (or REO Property) that relates or corresponds thereto
shall be the
property identified in the Mortgage Loan Schedule as corresponding
thereto. The
provisions of this Agreement shall be interpreted in a manner
consistent with
this Section 1.04; provided that, if there exists with respect to
any
Cross-Collateralized Set only one original of any document referred
to in the
definition of "Mortgage File" covering all the Mortgage Loans in
such
Cross-Collateralized Set, then the inclusion of the original of
such document in
the Mortgage File for any of the Mortgage Loans constituting
such
Cross-Collateralized Set shall be deemed an inclusion of such
original in the
Mortgage File for each such Mortgage Loan.
Section 1.05 Incorporation of Preliminary Statement.
The
parties hereto acknowledge that the Preliminary Statement at
the
beginning of this Agreement constitutes a part of this
Agreement.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES;
ORIGINAL
ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans.
(a) It is the intention of the parties hereto that a common law
trust be
established pursuant to this Agreement and further such trust
be
designated
as "Banc of America Commercial Mortgage Inc., Commercial
Mortgage
Pass-Through Certificates, Series 2006-5". LaSalle Bank
National
Association is hereby appointed, and does hereby agree to act, as
Trustee
hereunder and,
in such capacity, to hold the Trust Fund in trust for the
exclusive
use and benefit of all present and future Certificateholders.
It
is not
intended that this Agreement create a partnership or a
joint-stock
association.
(b) The Depositor, concurrently with the execution and delivery
hereof,
does hereby transfer, assign, sell, set over and otherwise
convey
to the
Trustee, in trust, without recourse, for the benefit of the
Certificateholders (and for the benefit of the other parties to
this
Agreement
as their respective interests may appear) and the Note B
Holders
all the
right, title and interest of the Depositor in, to and under (i)
the
Mortgage Loans and all documents included in the related
Mortgage
Files and
Servicing Files, (ii) the Mortgage Loan Purchase and Sale
Agreements
and (iii) all other assets included or to be included in the
Trust
Fund. Such assignment includes (i) the Mortgage Loans that from
time
to time
are subject to this Agreement, all interest accrued on the
Mortgage
Loans on and after the Cut-off Date and all principal payments
received
on the Mortgage Loans after the Cut-off Date (other than
principal
and interest payments due and payable on the Mortgage Loans on
or before
the Cut-off Date, which shall belong and be promptly remitted
to
the
applicable Mortgage Loan Seller), together with all documents
delivered
or caused to be delivered hereunder with respect to such
Mortgage
Loans by the related Mortgage Loan Seller; (ii) any REO
Property
acquired
in respect of a Mortgage Loan; (iii) such funds or assets that
from time
to time are deposited into the Certificate Account, the REMIC I
Distribution Account, the REMIC II Distribution Account, the
Interest
Reserve
Account, the Excess Interest Distribution Account, the Excess
Liquidation Proceeds Account and the REO Account (if established)
and (iv)
in the
case of a Mortgage Loan included in an A/B Loan, all the right,
title and
interest of the Depositor in the related Intercreditor
Agreement.
This conveyance is subject to the rights of the Sub-Servicers
pursuant
to the Sub-Servicing Agreements, which rights are subject in
any
event to
this Agreement.
Under United States generally accepted accounting principles,
the
Depositor shall report: (i) its acquisition of the Mortgage Loans
from the
Mortgage Loan Sellers, pursuant to the Mortgage Loan Purchase and
Sale
Agreements, as a purchase of such Mortgage Loans from the Mortgage
Loan Sellers;
and (ii) its transfer of the Mortgage Loans to the Trustee,
pursuant to this
Section 2.01(b), as a sale of such Mortgage Loans to the Trustee.
In connection
with the foregoing, the Depositor shall cause all of its records to
reflect such
acquisition as a purchase and such transfer as a sale (in each
case, as opposed
to a secured loan).
After the Depositor's transfer of the Mortgage Loans to the
Trustee
pursuant to this Section 2.01(b), the Depositor shall not take any
action
inconsistent with the Trust's ownership of the Mortgage Loans.
In connection with the Depositor's assignment pursuant to this
Section 2.01(b), the Depositor hereby represents and warrants that
it has
contractually obligated the Mortgage Loan Sellers, at the Mortgage
Loan Sellers'
expense, pursuant to the Mortgage Loan Purchase and Sale
Agreements, to deliver
to and deposit with, or cause to be delivered to and deposited
with, the Trustee
or a Custodian appointed thereby, on or before the Closing Date,
the Mortgage
File and any Additional Collateral (other than Reserve Funds) for
each Mortgage
Loan acquired by the Depositor from the Mortgage Loan Sellers. In
addition, with
respect to each Mortgage Loan under which any Additional Collateral
is in the
form of a Letter of Credit as of the Closing Date, the Depositor
hereby
represents and warrants that it has contractually obligated the
Mortgage Loan
Sellers to cause to be prepared, executed and delivered to the
issuer of each
such Letter of Credit such notices, assignments and acknowledgments
as are
required under such Letter of Credit to assign, without recourse,
to the Trustee
the related Mortgage Loan Seller's rights as the beneficiary
thereof and drawing
party thereunder; provided that the originals of such Letter of
Credit shall be
delivered to the Master Servicer. The Depositor shall deliver to
the Trustee on
or before the Closing Date a fully executed counterpart of each
Mortgage Loan
Purchase and Sale Agreement. If a Mortgage Loan Seller fails to
deliver on or
before the Closing Date, with respect to any related Mortgage Loan
so assigned,
a copy of the Mortgage, a copy of any related Ground Lease, the
originals and
copies of any related Letters of Credit, the original or a copy of
the policy of
lender's title insurance or, if such policy has not yet been
issued, a
"marked-up" pro forma title policy or commitment for title
insurance marked as
binding and countersigned by the issuer or its authorized agent
either on its
face or by an acknowledged closing instruction or escrow letter,
or, with
respect to hospitality properties, a copy of the franchise
agreement, an
original copy of the comfort letter and any transfer documents with
respect to
such comfort letter, the delivery requirements of this Section
2.01(b) shall be
deemed satisfied with respect to such missing document if such
Mortgage Loan
Seller delivers such document to the Trustee (or, in the case of
originals of
Letters of Credit, to the Master Servicer) within 15 days following
the Closing
Date. With respect to the Pamida Portfolio Mortgage Loan, the
foregoing delivery
requirements may be satisfied by either BCRE or Citigroup for both
BCRE and
Citigroup. With respect to the Mortgage Loans so assigned, the
Trustee shall
provide a certification within 30 days of the Closing Date that a
copy of the
Mortgage, a copy of any related Ground Lease, the originals of any
related
Letters of Credit, the original or a copy of the policy of lender's
title
insurance or, if such policy has not yet been issued, a "marked-up"
pro forma
title policy or commitment for title insurance marked as binding
and
countersigned by the issuer or its authorized agent either on its
face or by an
acknowledged closing instruction or escrow letter, or, with respect
to
hospitality properties, a copy of the franchise agreement, an
original copy of
the comfort letter and any transfer documents with respect to such
comfort
letter due on the Closing Date have been delivered (with any
exceptions noted).
None of the Trustee, any Custodian, the Master Servicer or the
Special Servicer
shall be liable for any failure by any Mortgage Loan Seller or the
Depositor to
comply with the document delivery requirements of the Mortgage Loan
Purchase and
Sale Agreements and this Section 2.01(b).
The conveyance of the Mortgage Loans and the related rights and
property accomplished hereby is absolute and is intended by the
parties hereto
to constitute an absolute transfer of such Mortgage Loans and such
other related
rights and property by the Depositor to the Trustee for the benefit
of the
Certificateholders. Furthermore, it is not intended that such
conveyance be a
pledge of security for a loan. If such conveyance is determined to
be a pledge
of security for a loan, however, the Depositor and the Trustee
intend that the
rights and obligations of the parties to such loan shall be
established pursuant
to the terms of this Agreement. The Depositor and the Trustee also
intend and
agree that, in such event, (i) this Agreement shall constitute a
security
agreement under applicable law, (ii) the Depositor shall be deemed
to have
granted to the Trustee (in such capacity) a first priority security
interest in
all of the Depositor's right, title and interest in and to the
assets
constituting the Trust Fund, including the Mortgage Loans subject
hereto from
time to time, all principal and interest received on or with
respect to such
Mortgage Loans after the Cut-off Date (other than scheduled
payments of interest
and principal due and payable on such Mortgage Loans on or prior to
the related
Due Date in November 2006 or, in the case of a Replacement Mortgage
Loan, on or
prior to the related date of substitution), all amounts held from
time to time
in the Certificate Account, the REMIC I Distribution Account, the
REMIC II
Distribution Account, the Interest Reserve Account, the Excess
Interest
Distribution Account, the Excess Liquidation Proceeds Account, or
the REO
Account, and all reinvestment earnings on such amounts, and all of
the
Depositor's right, title and interest under the Mortgage Loan
Purchase and Sale
Agreements, (iii) the possession by the Trustee or its agent of the
Mortgage
Notes with respect to the Mortgage Loans subject hereto from time
to time and
such other items of property that constitute instruments, money,
negotiable
documents or chattel paper shall be deemed to be "possession by the
secured
party" or possession by a purchaser or person designated by such
secured party
for the purpose of perfecting such security interest under
applicable law, and
(iv) notifications to, and acknowledgments, receipts or
confirmations from,
Persons holding such property shall be deemed to be notifications
to, or
acknowledgments, receipts or confirmations from, financial
intermediaries,
bailees or agents (as applicable) of the Trustee for the purpose of
perfecting
such security interest under applicable law.
(c) As soon as reasonably possible, and in any event within 90
days
after the
later of (i) the Closing Date (or, in the case of a Replacement
Mortgage
Loan substituted as contemplated by Section 2.03, after the
related
date of substitution) and (ii) the date on which all recording
information
necessary to complete the subject document is received by the
Trustee,
the Trustee shall complete (to the extent necessary), and shall
submit for
recording or filing, as the case may be, in the appropriate
office for
real property records or UCC Financing Statements, as
applicable, each assignment of Mortgage and assignment of
Assignment of
Leases
(except with respect to any Mortgage or Assignment of Leases
that
has been
recorded in the name of MERS or its designee) in favor of the
Trustee
referred to in clauses (iv) and (v) of the definition of
"Mortgage
File" that
has been received by the Trustee or a Custodian on its behalf
and each
original UCC-2 and UCC-3 in favor of the Trustee referred to in
&nbs
